A week after the state of intergovernmental relations (IGR) in the UK was highlighted by the UK government’s law officers standing in opposition to their devolved counterparts in the UK Supreme Court, the Public Administration and Constitutional Affairs Committee published a report on improving IGR after Brexit. Jack Sheldon discusses the methods by which England could gain distinct representation — something it currently lacks — in a new IGR system.
At the end of July the House of Commons Public Administration and Constitutional Affairs Committee (PACAC) published Devolution and Exiting the EU: reconciling differences and building strong relationships. This is an impressive report, containing original recommendations on a range of aspects of the UK’s territorial arrangements.
It is particularly notable that the MPs chose to devote substantial sections of the report to the English question. These focus, in particular, on the often overlooked issue of England’s representation in intergovernmental relations (IGR) forums such as the Joint Ministerial Committee (JMC). PACAC’s attention to this reflects a growing appreciation, including in official circles, of the salience of questions about how England is recognised and represented within the UK’s changing systems of governance. It is also timely, with a JMC-commissioned review of IGR machinery currently in progress ahead of the proposed negotiation of post-Brexit frameworks in areas such as agriculture, fisheries and environmental protection.
Since the JMC was established in 1999, it – and its sub-committees – have been composed of ministers from the UK government and the devolved governments in Scotland, Wales and Northern Ireland. PACAC highlights the fact that this leaves the UK government wearing ‘two hats’, as representative of both England and the UK as a whole. This dual role has caused multiple concerns. Many in the devolved governments fear that the UK government will favour England. In evidence to PACAC, Carwyn Jones, the Welsh First Minister, suggested he could not have confidence that fishing quotas would be allocated fairly if DEFRA was the English representative in negotiations, whilst also being ultimately responsible for making the allocation. Meanwhile, regional and local interests in England feel overlooked. Andy Street, the West Midlands ‘metro mayor’, was among those who told the committee that the English regions’ voices were not heard as loudly in Whitehall as those of Scotland, Wales and Northern Ireland. Finally, some have argued that under current arrangements England is denied a national voice, resulting in the devolved areas securing preferential treatment – especially in relation to finance.
Up to now the absence of separate English representation has been more of a problem in theory than in practice, since IGR forums have been used primarily for information-sharing rather than decision-making. However, a more prominent co-decision role is anticipated after Brexit and the JMC has undertaken to develop a reformed machinery for this purpose in the coming months. Where frameworks are agreed they will apply across the UK and so have consequences for policy in England as well as the devolved territories. And in some of the areas up for negotiation, for instance agriculture, English interests are likely to diverge significantly from those of Scotland, Wales and Northern Ireland. The scenario which PACAC has spotted, and is trying to head off, is that the question of ‘who speaks for England’s farmers?’ gets a hearing among an increasingly exasperated English public.
It is in this context that PACAC concludes that ‘separate English representation’ on the JMC should be introduced (see paragraph 94 of their report). It does not go into much detail about exactly how this would be achieved, although it does sketch out two possible models involving representation through regional and local actors (paragaph 137). There are in fact several possibilities.
Options for achieving separate English representation
The most obvious way of ensuring separate English representation on the JMC would be to establish an English government equivalent to those in Scotland, Wales and Northern Ireland. This is a key demand for some campaigners and is discussed in the recent Constitution Unit report on Options for an English Parliament. However, it is hard to envisage such a radical and potentially explosive option being adopted in the near future, especially while Brexit remains the overwhelming focus of Westminster politicians. PACAC opts instead to focus on reform of England’s representation in IGR within the context of the UK government continuing to function as England’s government too.
The PACAC report is notable for its readiness to accept the case for providing representation to English ‘metro mayors’ such as Andy Burnham, Sadiq Khan and Andy Street, all of whom gave evidence to the committee. There is indeed a strong argument for mayors to be provided with an institutionalised opportunity to engage with UK government ministers, given their reliance on central government for both funding and delegation of functions.
However, the proposal to include the metro mayors as English representatives on existing IGR forums faces difficulties. These actors have very different powers to the devolved governments, can speak only for some of the largest urban parts of England and are not accountable to a legislature. A better idea might be to set up a separate English Leaders’ Forum consisting of the metro mayors, local government leaders and UK ministers, at which issues of relevance to all would be discussed. There is a precedent for this in Italy where there is a Conference of State, Cities and Localities in addition to the State-Regions Conference involving regional Presidents.
An alternative model for providing regional and local interests in England with a voice in IGR would involve a single representative of English local government attending the JMC and its sub-committees. There are interesting precedents for this on intergovernmental councils in Australia and South Africa, where representatives of the local government association attend meetings alongside central and sub-state level ministers. This model could potentially be followed for England, with the Chair of the English Local Government Association (LGA) attending plenary meetings of the JMC and other senior representatives of the organisation taking part in sub-committees. The addition of a local government voice could provide a useful perspective on certain issues, for instance the distribution of funding under the proposed UK Shared Prosperity Fund. However, as with the metro mayors an LGA representative would not be able to perform an equivalent role to devolved ministers in negotiations on the key issues in post-Brexit IGR. Such an innovation may hence be tokenistic rather than meaningful.
A different approach from that taken by PACAC, which might be more effective in addressing the issue of the UK government’s ‘two hats’, would be to provide English representation of sorts from within the UK government. The UK government delegation at JMC meetings could include one minister serving as chair, focusing on trying to secure agreement for the UK as a whole, and another specifically tasked with advocating English interests. This sort of format is already used in some official-level meetings. It would also have some resemblance to the ‘administrative devolution’ arrangements in place up to the 1990s for Scotland, Wales and Northern Ireland. In sensitive negotiations over issues such as fishing quotas and agricultural funding, this model could ensure that England’s distinct interests are voiced, while allowing the chair to pursue a compromise that takes into account perspectives from all four nations. However, by making the UK government’s dual role more explicit it may have the unintended consequence of highlighting the absence of a separate English voice equivalent to those from the devolved territories. This option would also raise challenging questions about the doctrine of collective ministerial responsibility by requiring UK ministers to take different positions from each other.
England’s separate representation in IGR forums cannot be achieved straightforwardly, which is one reason why this issue has been side-stepped for the past 20 years. However, the forthcoming negotiation of post-Brexit frameworks makes the UK government’s ‘dual hats’ in any reconstituted system increasingly problematic. It is therefore essential that the ongoing review of IGR machinery carefully considers the issues highlighted by PACAC – even if it does not necessarily endorse the latter’s institutional preferences. The possibilities discussed here are by no means exhaustive and require further elaboration. Over the coming months I, along with colleagues from the University of Cambridge and University of Edinburgh, will be actively considering the question of how the whole of the UK is fairly represented within a reformed system of IGR as part of the Between Two Unions research project funded by the ESRC.
PACAC’s report, Devolution and Exiting the EU: reconciling differences and building strong relationships, is available here. For a full summary see Professor Nicola McEwen’s blog post for the Centre on Constitutional Change.
For more on the UK Supreme Court dispute between Westminster and the devolved governments, a blog by Akash Paun of the Institute for Government is available here.
This article appeared originally on the blog of the Constitution Unit, UCL, https://constitution-unit.com/2018/08/16/intergovernmental-relations-and...