The protocols developed for intergovernmental relations in the aftermath of devolution would have needed adapting to cope with the greater devolution recommended by the Smith Commission but, says Alan Page, Professor of Public Law at the University of Dundee, they were in urgent need of review before that.
The UK’s central and devolved administrations have, to put it mildly, demonstrated considerable difficulty ‘playing nicely’ together. The problems lie not so much within the existing framework, although there is plenty of room for improvement there, as in the fact that there is a lack of coordination between different Whitehall departments in terms of how they relate to the territorial administrations. The outworking of the Smith Commission is likely to lead to calls for new protocols but there is a need for a change in practice as much as in procedures.
There is nothing new about the complaint that Whitehall treats consultation with the nations of the UK as an afterthought – when it gives them any thought at all. Part of the logic behind devolution in the first place was that the interests of Scotland, Wales and Northern Ireland tended to be overlooked by a London-based bureaucracy. There has also been an undue reliance on informal methods of communication and consultation, which, although they will always have role to play and should be encouraged, are not a substitute for a properly functioning system of intergovernmental relations.
The Memorandum of Understanding underpinning the current arrangements sets out three principles; communication and consultation, cooperation, and confidentiality. In practice one of these – confidentiality – has been given primacy, one consequence of which is that effective parliamentary scrutiny is hampered. By contrast, cooperation is defined in a manner that falls well short of even resembling an obligation:
‘All four administrations want to work together, where appropriate, on matters of mutual interest. The administrations recognise the importance of cooperation across a range of areas. They also recognise that it may be appropriate for them to undertake activities on each other’s behalf, which may be covered in agency arrangements or other agreements.’
Memorandum of Understanding and Supplementary Agreements between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers and the Northern Ireland Executive Committee (October 2013) para 8
One notable omission from the current arrangements is the principle of mutual respect – explicitly recommended by the Calman and Silk Commissions and implied in the foreword to the report of the Smith Commission. The introduction of such a principle, acknowledging what Silk refers to as “mutual respect and equality of esteem”, would go some way encouraging an attitude of cooperation between equals rather than one of either casual indifference or presumed consent.
There are also a number of structural changes that would serve to encourage both a more coordinated approach and more transparent outputs. The case for replacing the exiting territorial offices with a single department would now seem overwhelming. It would supply a clarity of focus that would be useful when relations are as amicable, as they are now, and vital were they to sour. Similarly, the creation of a Commons Devolution Committee would provide a focus for scrutiny of that new department and ensure that appropriate protocols and procedures were not only adopted but adhered to.
To date there has been significant resistance to putting inter-governmental relations on a statutory footing. The Memorandum of Understanding explicitly states that it is a ‘statement of political intent’ rather than a legally binding arrangement. It is, perhaps, unsurprising that politicians in both devolved and central governments wish to have the maximum room for manoeuver without troubling overmuch with the niceties of parliamentary or judicial oversight. However, as with clarity of executive purpose and transparency of parliamentary scrutiny, the possibility of judicial intervention would ensure that a consistent standard was applied across all four administrations.
Taken together, a single ‘home affairs’ department responsible for the relationship(s) between the governments of the UK, accountable on a statutory basis to a dedicated parliamentary body and appropriate judicial authority would allow for a far more effective degree of coordination and oversight than has been practised hitherto.
Alan Page is Professor of Public Law at the University of Dundee. His next book, Constitutional Law (W Green & Son 2015), is the first full account of the governance of Scotland by a constitutional lawyer since devolution; it will be available from May.