Official Report 451KB pdf
Item 2 is to take further evidence on wider reform of intergovernmental relations from UK and Scottish Government officials. We have with us Philip Rycroft, head of the UK governance group, Cabinet Office, UK Government; and Ken Thomson, director general, strategy and external affairs, Scottish Government. I welcome you both, gentlemen. There are no opening statements so, in the interests of time, we will press on.
I will open with the first question for Mr Rycroft. You are the UK Government’s lead official with responsibility for the review of the memorandum of understanding and the apparatus of joint ministerial committees. It might be helpful if you could outline why the review was set up and the background to it, what its terms of reference are and how it is progressing.
Thank you, convener—those are all good questions. We have had a system of intergovernmental relations in place since devolution in 1999, with JMC machinery supported by the MOU. In fact, there is a complex set of concordats and MOUs that cover a number of different parts of business.
That system has served its purpose—very well, in the view of some—over the years, but we are coming to a major juncture in the devolution settlements. There are proposals currently before the Westminster Parliament for further devolution for Scotland, and a commitment from the UK Government for further devolution to Wales and a significant change in the Welsh settlement, and—following the Stormont House agreement—changes in the Northern Ireland settlement. The devolution settlements are changing. The JMC plenary that met last year, chaired by the Prime Minister, with the Welsh and Scottish First Ministers and the Northern Irish Deputy First Minister in attendance, agreed—by consensus, as always—that it was an appropriate moment to review the machinery of the JMC and the associated MOU.
That was the remit that we were given: it was passed to me and Ken Thomson, and to our colleagues from the Welsh Government and the Northern Ireland Executive, and we are taking it forward. The terms of reference are broad, so we are not confined by what we consider in that space. We have hitherto taken the process forward through a series of meetings at official level. As it happens, the latest meeting, at which we covered the territory again, took place just yesterday. At some point in the next few weeks, we will have to consult our own ministers on the way forward. We are ultimately looking for ministerial agreement before the end of the year—it is hoped—at the JMC plenary.
I hope that that gives you a brief overview of where we are at. The process is interesting, but it marks—as is recognised by all the Administrations—a moment of change in the devolution settlements. It is an appropriate moment, therefore, to review the way in which the intergovernmental machinery works.
Within that broad remit, have you given any consideration to how you would inform Parliaments or their committees about the depth and volume of the work in which you are engaged and about those with whom—aside from ministerial officials and experts—you are engaging?
I will answer that question in general terms with regard to what people see and understand about what is going on in the intergovernmental relations space.
It is probably true to say that parliamentary scrutiny across the piece has been relatively light over the past few years. I suspect—certainly from my perspective, working in the Whitehall context—that that will change. There is a lot of interest in this work from the House of Lords Constitution Committee and the Political and Constitutional Reform Committee in the House of Commons, so I anticipate that we will face increased scrutiny on intergovernmental relations in the months and years ahead.
As was said in this morning’s previous session, it is for the Parliaments themselves to decide how they hold their executives to account in this space. However, we need to think about the fact that, in order for effective scrutiny to take place, Parliaments and the wider public need to understand what is happening in the intergovernmental space.
It is worth making the point that the JMC sits at the apex of a whole complex of intergovernmental working. That intergovernmental working is—in 101 different aspects and dimensions—critical to the good governance of the UK as a whole. Day-to-day contact between the devolved Administrations and the UK Government, and among the Administrations, is important to ensure that business policies can be taken forward effectively.
There is clearly an advantage in people understanding the depth and the range of the interaction between the Governments and how it supports the good governance of the United Kingdom. One aspect that we will have to look at is how we make that real. We will consider what constitutes an appropriate level of information and transparency around dealings in the intergovernmental relations space. Ultimately, however, it will be for the ministers of all four Administrations to decide how they express that and what kind of agreement they reach when they look at the situation in the round.
You say that both Governments need to work together to create a more respectful team and a productive, robust, visible and transparent relationship. Do you believe that, through your process, you have achieved that objective yet?
I will make a couple of quick points. We are thinking about not just two Governments but four Governments, as the Welsh Government and the Northern Ireland Executive are also involved in this space.
Past practice is probably not the best guide to future practice in this space, and that applies to the changes in the devolution settlement. I will take the two most salient examples. If and when further powers over tax and welfare are devolved to the Scottish Parliament and the Scottish Government, that will intensify the requirement for close working between the UK Government and the Scottish Government. Past practice in this context is not a good guide as to what practice should look like in the future in terms of the visibility and understanding of how those relationships operate, how they deliver value and how the operators in this space are held to account by their respective Parliaments.
As you may have seen, the committee’s report expressed a concern that we are at this stage, in starting these engagements, establishing practice and precedent if it is not already established. Based on what you have said today, the process has not involved any real consideration of how it will involve the other Parliaments and their parliamentarians and committee structures. They are not involved in the talks, and there are not even any public hearings. They do not know that the talks are taking place, nor are they are aware of the broad agendas and issues, the people who have given evidence or those with whom you are engaging. None of that is happening at all right now.
As parliamentarians, that causes us concern. I will not take the pessimistic route and say that we will make ourselves redundant—I do not think that is going to happen. However, you have not yet indicated in any of your answers that you have given any consideration to how you will bring those Parliaments and parliamentarians into play. You might do something in the future, but nothing has so far been done.
To be clear, are you talking about input into the process of consideration?
I am talking about having any awareness of the number of meetings that you and your officials attend; the number of calls that they make; the issues that they are dealing with; and the agendas and issues that are being discussed. We are talking about basic information.
There has been and will continue to be a good deal of input from parliamentary committees. Indeed, the fact that we are here today shows that we are very much alive to getting input in a parliamentary context, and that has been picked up by many other commentators in this domain.
How do we make sure, over time, that intergovernmental relations and the interface with parliamentary scrutiny are appropriate? We are currently engaged in discussions at official level, as we have been asked to do by our politicians through the JMC, and that process has to take its course. I do not think that it would be appropriate to have that negotiation in the public space. We need the space to have that discussion. Ultimately, our job is not to make the decisions about what happens here but to advise our politicians on how they may take matters forward. Ultimately, the decisions on JMC structures and the review of the MOU, and on intergovernmental relations more generally, will be for the JMC itself, and we are preparing the way for that. We are not delivering the outcomes at official level.
Parliamentarians may be given some consideration with regard to how the process should go forward, but until now we have not been asked to be involved in the process at all. Does Ken Thomson want to add anything on that before I open up the session to questions?
I will not repeat what Philip Rycroft has said but, on your last point, convener, I will just distinguish between the work that Philip has described to put the JMC in a position to take decisions on this issue, which is one strand, and the other strand, which is the day-to-day work of intergovernmental relations. As he said, a lot of that happens fairly informally in day-to-day contacts between officials. That is part of the work of government and therefore it is open to scrutiny by our respective Parliaments. We are accountable to our ministers and they to their Parliaments, and the Scottish ministers are accountable to you. There is the opportunity for parliamentary committees to scrutinise the work that is done between as well as within Governments through all the many ways in which that can be done, including hearings such as this one. Just as the work of Governments evolves as the devolution settlement evolves so, too, does the nature of parliamentary scrutiny or the content of that scrutiny. However, my point is that the opportunities for that are there—the structures are there through the accountability of ministers to Parliament.
I want to pursue a little more some questions around the memorandum of understanding. What stage in the process are you at with the work that you are doing now? Are the discussions and your work likely to revisit the principles of IGR? Could we also perhaps see changes in, for example, the intergovernmental relations processes that are undertaken? Will you give us some detail about where we are at the moment and what exactly you are looking at?
The MOU in its current form largely reflects the document that was drawn up before devolution happened. To that extent, in doing this review, we have the advantage of all those years and experience of working between Governments. It remains a live document and set of processes, so we are not writing something in the abstract from either past experience or current issues. I think that we have a pretty good idea of how the principles that are in the MOU operate in practice and how they need to operate. That includes mutual respect between Governments, good communications and how we resolve disputes and so on.
Like Philip Rycroft, I do not want to give a running commentary on a discussion that ministers have not yet engaged in, given that the JMC plenary has not happened, However, broadly speaking, given that ministers in both—or all—Governments have continued to evolve and adapt the MOU, you could take it that they agree with the principles that are in it. What we are largely doing is seeing how those principles can be reinforced for the changing nature of the devolution settlement. Some of that will be quadrilateral in nature for the four Governments but, increasingly, a lot of it will be bilateral because of the particular nature of the changes that are coming on tax and may well come on welfare. I do not think there is a lot of disagreement; in fact, there is a lot of consensus about the principles set out in the MOU. We have the opportunity to look at the detail of how that works in the light of experience and to look ahead to the changes that are going to come on tax and welfare in particular.
Are you saying in effect that you are not re-examining the principles of IGR in the MOU that is currently in operation but that you are looking more at the processes?
We are looking at both. You would expect us, as part of a review, to look at how it works as a whole. Maybe I can make the same point in a slightly different way. There is the culture of intergovernmental working and there are the processes and rules. Both matter. The significance of the rules and the principles in the MOU is not just that they govern the work of the JMC committees but that they set the framework and the tone for how the Governments interact day to day on a whole range of issues. Broadly speaking, when I am describing to my colleagues how I think that should work, I say that it is important for Governments to understand each other’s positions, even when they do not agree on them. That underpins the nature of intergovernmental working.
Obviously, a starting point is thinking about the principles that underpin intergovernmental relations. It a credit to the framers of those principles that they have stood the test of time, as Ken Thomson said. Those principles have worked well. We will be putting in advice to our ministers what we think about them. However, the focus has to move on from the principles to how we make sure that intergovernmental relations work effectively. In that context, it is worth being aware that the JMC is a political forum for discussion between Governments that will not always agree on a way forward. Our job is to give advice to ministers individually and, ultimately, collectively on how we think we can adjust those processes to ensure that intergovernmental relations remain effective in the light of the changing devolution settlement. That encompasses principles, but it clearly also encompasses process and practice.
I will wrap up my two questions in one to try to speed things along.
That would be helpful.
First, there has been discussion about whether the MOU, which is legally non-binding, should go on a statutory footing. Is there any discussion going on about that, not on the basis that it would create inflexibility in the system but in order—you have probably heard some of the discussions on this—to help create transparency and legitimacy in the process? Are there any barriers to putting the MOU and its procedures on a statutory footing? Secondly, will you explain to us how it operates? Does it operate on the basis that the Governments and all those involved in the process are on an equal footing of mutual respect and trust, or is it on a hierarchal basis?
I will try and give you a brief combined answer. The JMC operates by consensus—there is no casting vote, if you like. On embedding it into statute, the current MOU is not a piece of legislation. You have heard us both say that, broadly speaking, we think that it has served the four Governments reasonably well over the period of devolution. Some statutory aspects to how the Scottish and UK Governments relate are set out in the Scotland Act 1998. I do not want to speak for my ministers but, so far, experience shows that it has been possible to promote good intergovernmental working, resolve disputes where they arise, and make clear what is happening without having to put the whole process on to a statutory footing, which I think would probably change the character of it and make it a bit less flexible. As Philip Rycroft said, it is a political forum, and political issues tend to get resolved by politicians rather than by judges. That would be my reflection on that.
You have the slight advantage on us because you have had quite a long debate on other jurisdictions where intergovernmental relations are on different footings. Indeed, it was clear from the earlier panel that they are not on a like-for-like basis and that they all vary in their ways. We have had a look at practice around the world. I do not think that we have spotted a very strong correlation between the extent to which intergovernmental relations are tied down in statute and their effectiveness. Ultimately, it comes down to, if you like, the political will that imbues the way in which intergovernmental relations operate. We are aware that the opinion has been expressed by those who have been looking at intergovernmental relations that they should be put on a statutory footing. That is something that we will have to advise our ministers on, and that is what we will do. As I said, we are not seeing the evidence very strongly that, in the UK context in particular, that would necessarily add to the effectiveness of the processes that we have.
I will also pick up your point about mutual respect. The Prime Minister has been very clear on his respect agenda, and that is something that informs our approach to intergovernmental relations. The process that we are running together reflects that. By “together”, I mean together with our colleagues from the Welsh Government and the Northern Ireland Executive. This is a process that we will move forward by consensus, recognising that respect between the Administrations.
I totally accept your point, gentlemen, that, in order for intergovernmental relations to evolve, they must be in a space that allows that to happen. However, as the convener said, this is as much about parliamentary scrutiny of the process. It is not about what is happening in the nuts and bolts of a negotiation but about how Parliaments in Cardiff, Edinburgh and, for that matter, London keep an eye on that. I put two examples to you. There is a lot of Government activity in Edinburgh and London around the refugee crisis in Europe. Was that subject to a JMC process or has that all happened so quickly that, as in the case of Germany, which we heard about, it was just done by ministerial phone calls and so on?
The second example is more akin to the discussions that Linda Fabiani and I had in the Smith commission when we discussed the monthly agriculture and fisheries council. There has recently been a European agreement for €500 million, which is described as the Hogan package. That would have been subject to a discussion between agriculture ministers across the UK, but what about parliamentary scrutiny of that? You may well say, Mr Thomson—and you would be right to say this—that I can lodge parliamentary questions and I can ask Richard Lochhead at question time, but no committee, including Rob Gibson’s Rural Affairs, Climate Change and Environment Committee, has yet had a chance to have a precise look at that. That is a long way of saying that I do not think that we are there yet in terms of parliamentary scrutiny of what exists, never mind what happens after the Scotland Bill becomes law.
I will respond briefly, and then Philip Rycroft may want to come in. There are two issues there. The first is when events move fast; the other is how Parliaments scrutinise the outcome of an intergovernmental discussion.
By way of preface, I should say that I cannot speak to the detail of either of your specific examples, so I will give you a general answer of how such things work, which is informed by my knowledge of those two issues. When something blows up fast, the nature of the relationship between the two Governments is that officials and ministers know one another, so they can lift up the phone, and it is possible to have those conversations. I am sure that people on both sides would think that such conversations are sometimes more effective and sometimes less effective. In cases that I was more directly involved in, such as the outbreaks of swine flu and—this is a very good example—the Glasgow airport bombing, there was very good intergovernmental contact, communication and co-operation on a fast-moving issue. That is by way of illustration to show that dealing with such issues does not all go through the formal process of a JMC plenary that meets once a year.
On your example from a European negotiation—again, I was not directly involved in the lead-up to the particular negotiation that you described—in general, the JMC on Europe is the place in which ministers from the four Administrations come together to discuss and agree the UK line, which is then developed and delivered in negotiations in Brussels. That is the process and the structure that allows the Governments to work together on an issue of that kind. Again, I am sure that there will be occasions when the four Governments find that process more or less successful or helpful, but it exists. It is worth noting that, even when the JMC plenary went into abeyance for a time, the JMC on Europe remained functioning. When things get used, that shows that there is a use for them.
Finally, on your point about parliamentary scrutiny, I would repeat what I have said: if you regard this issue as not different but simply part of the work of Governments, it is possible for Parliaments to scrutinise it in the way that Parliaments scrutinise the work of Governments generally. One reflection is that perhaps it is not so clear to parliamentary committees, which tend to have a portfolio focus, where intergovernmental relations would sit. It is interesting that you are having this discussion and inviting us to give evidence because, by its nature, this committee has that focus. I am just speculating, but that might also be something that the Conveners Group would ask the First Minister about, given that an important part of her work is to relate to the other Governments within the UK. The mechanisms are there, but there is scope for their use to evolve as the bandwidth in this relationship gets bigger with the changes to the devolution settlement.
I do not have a huge amount to add to that. Like Ken Thomson, I see two distinct issues. The effective working of intergovernmental relations day to day, particularly when under pressure of time, as with the refugee crisis, and an agriculture and fisheries council that was dealing with what was deemed to be a bit of a crisis. The JMC tends to meet before the big meetings of the Council of Ministers, but there is always a procedure of consultation between the four Administrations in advance of meetings of the agriculture and fisheries council in which they discuss and put that together the UK line. It is quite an elaborate procedure that has been honed over time and now works pretty effectively. Obviously, as Ken Thomson has indicated, there is not always 100 per cent agreement, but there is a process for seeking to reach agreement. I assume that that would have operated in this case.
10:45Some things move fast and sometimes there is a bit of a disjuncture in the system, particularly if an issue is blowing up in a part of the system that does not have the habit of interaction. My colleagues in agriculture and fisheries are used to dealing with such issues because of the close intersection of the devolved and reserved settlements in the agriculture and fisheries space. However, in other parts of the system, here and in the south, people will not have that habit of working so closely together.
Ken Thomson and I and other colleagues are having to think about whether we could do more through our auspices for those who are charged with the responsibility for thinking about intergovernmental relations generally. Can we do more at an official level to step in and support the respective Governments to get through difficult moments if that is required? That is one of the things that we need to think about.
On parliamentary accountability, I would draw a distinction between accountability for intergovernmental relations in the round and accountability for day-to-day business, under which it is legitimate to ask, “Was that piece of business transacted in a way that demonstrated effective working between the Governments?” If that is not demonstrated, it is drawn out. That is normal business and it uses all the mechanisms that you and the Westminster Parliament have at your disposal to hold the Governments to account.
There is a separate issue with the accountability for intergovernmental relations in the round. In a sense, that brings intergovernmental relations more into our domain and is about how we make sure that, in essence, intergovernmental relations are visible to departments and to the broader public so that people can hold us to account effectively. That is one of the things that we need to think through and advise our respective ministers on.
Everyone on the committee recognises that intergovernmental relations go on every day and deal with things as they come up. However, the memorandum of understanding is being reviewed at the moment, and within that we have the joint ministerial committees, which are set structures of intergovernmental relations. That is where people can see their respective ministers coming together to discuss and promote joint working.
I feel strongly that if we are to do a meaningful review, we have to be honest about what has gone before. I have to say to Mr Rycroft that I find his comment that the joint ministerial committees have served us well over the years astounding. I suppose that it depends on your perspective, who you think has been served and whose interest should be served. For the first eight years of this Parliament, the joint ministerial committees hardly met at all, apart from the European one. From my experience, when I went as a minister to a joint ministerial committee on Europe, Scotland came under the heading of “Any other competent business” on the agenda. That was not serving Scotland well in any way at all.
I do not particularly want to go over that old ground. All I am saying is that fine words are being spoken about mutual respect and parity of esteem, but if this is the right time to be looking at these things over again, let us be honest about where we have come from and how it has evolved over the years. The Scottish Parliament used to have to ask parliamentary questions to find out when joint ministerial committees were being held. Why should our Parliament and a particular committee not know when issues are on the agenda for discussion and at least get some kind of report back from it?
As I say, I do not want to beat anybody up; I am just talking about the facts. Let us be clear about where we start from, how we have evolved and what we are trying to achieve from now. I hope that we can do that.
I am not sure that there was a precise question in there, although there was your comment directed at me about the way that things have worked in the past.
Clearly, if you look at the way in which the MOU and the JMC have supported intergovernmental relations, one can always find examples of where things have gone wrong and you can take an unfavourable view of the overall prospectus. However, in the main, intergovernmental relations have functioned. For example, the number of formal disputes that have come through the system has been relatively small. To my knowledge, there have been four during the past few years and those have been resolved. One took a little bit of time, but the others were resolved relatively rapidly.
The point that you are making is that, whatever the past, we are at a juncture where we have to look forward. If people have been concerned about parliamentary scrutiny or transparency, we can learn from that. We need that input to inform our work, and indeed we have had a lot of that input. It will ultimately be for ministers to decide how they reflect that in the structures and new ways of working that they agree, if they do so. That is part of our job that is informed by the deliberations of this committee and others.
Thank you. Can I ask another question, please?
We will hear from Mr Thomson first.
I forgot about Mr Thomson. How could I?
I should have kept quiet. I just wanted to reflect on what Linda Fabiani said and the experience of being at some of those committees myself. I would not want to give you the impression that they are never frustrating occasions. At the meetings, politicians who sometimes have very strong differences of view come together. You know from your own experience that that can be frustrating and I am sure that others have felt the same. What we are saying is that when there are disagreements, the JMC process, broadly speaking, has recently provided a forum for airing the issues.
I want to go back to the point about the JMC. For some years, the JMC plenary fell into abeyance. I think that I recall discussing that with you at an earlier evidence session and making the point that, in the period from 1999 to 2007, there was one political party—the Labour Party—in power in Westminster and in coalition at Holyrood. Some of the discussions that we are talking about went through party-political channels. There was a significant moment of evolution in the practice of intergovernmental relations in 2007, when the same colour was no longer in power in both places. That caused the operation of formal intergovernmental machinery to have to strengthen because the other channels were not there. Broadly speaking, that has been a good development because, whatever other channels exist, it is important to have channels in which the two Governments can engage directly as Governments. The experience of the JMC during that period was not uniform and it always has its frustrations but, broadly speaking, it provides a forum in which politicians can get together to try to work out answers to their differences or at least to understand each other.
That brings me back to the point that it is the structure that is there, and that Parliaments and people should know that the meetings are taking place. It is very important that there is an allowable degree of transparency around them.
Moving on from that, at an event last night, some members of the previous panel and other academics raised the importance of discussion among the devolved legislatures. I am not sure that anything formal has been set up to deal with it recently; I know that it was not there before. There were obviously informal discussions around JMCs and the British-Irish Council and so on, but is that something that you are looking at under the MOU?
We caught Dr Mueller’s answer to you that that is a political question and you are the politicians. We quite liked that answer.
To give you a serious answer, the focus of our work is on supporting our ministers and how they decide how Governments should relate. There is clearly a set of issues around how Parliaments relate but we would be exceeding our brief if we advised Parliaments on that. You have your own sources of advice.
I think that you already have. Earlier you suggested that parliamentarians need to look seriously at how to fulfil that responsibility and to ensure that we are using all the mechanisms that are available to us in a new situation. You referred to that earlier.
Of course, the bilateral—or trilateral or quadrilateral—relations between Parliaments are one of the things that came out of the Smith commission proposals. That is clearly a debate space for all the Parliaments to take forward and we are happy to do anything that we can to facilitate that, but it is not our place to lead on that work.
Yes, it is something that we can reflect on.
I am interested in dispute resolution. Philip Rycroft referred to four instances in which, presumably, the protocol had been invoked, but we do not know how that works. Could you say something about what happens when there is a dispute?
A process is set out in the MOU. It is part of the consensual workings of the JMC that, if one of the Administrations feels aggrieved about a particular issue, it can invoke the dispute avoidance and resolution procedures. There is then is a whole set of procedures to go through to escalate that as necessary.
I have two points to make about that. One is that the clue is in the title to the relevant section of the MOU, which is “Dispute avoidance and resolution”. A lot of the work that we are doing is informed by the collective wish of Governments to avoid disputes where possible. How do we avoid disputes? We avoid disputes by having good and respectful working relationships, and by having early discussions about issues that might come up, so there is the time and the space to resolve issues before they get to the point of formal disagreement or dispute.
Secondly, a lot of people are looking at dispute resolution—it is clearly on our agenda—and asking whether dispute resolution should be made more formal, or whether the whole process should be made statutory. We are going to have to look at that quite hard. The point that I would make at this stage is that, as with the wider machinery, the process is intrinsically political. The more formal you make dispute resolution, the more you risk beginning to constrain the scope for political intervention to resolve something.
The Deputy First Minister discussed those issues when he was at the committee early in June, talking about the dispute about the Olympic Barnett consequentials. He said that it took an awfully long time for that to be resolved, which is true, but he also said that there was a resolution when there was the political will to make that resolution. The important point is that, in looking at dispute resolution, we should not overly constrain politicians’ capacity to find a resolution to the issues that arise.
The issue that we are all thinking about at the moment is the fiscal framework; would that just go through the joint ministerial committee? It has been suggested that, if there is no agreement, there should be some independent arbitration on that. I presume that that would be resisted by the UK Government, but maybe not by the Scottish Government. What do you think about that?
The fiscal framework falls squarely into the bilateral space and it will be a bilateral relationship between the UK Government and the Scottish Government. As you are well aware, the negotiation on that is in process at the moment and you had the opportunity to speak to the Deputy First Minister about it some weeks ago now. That process continues. As with fiscal relationships hitherto, there needs to be an on-going relationship between the Treasury and the Scottish Government to manage those issues on an annual as well as a multiannual basis. All that will become more complex if we get to the stage of further devolution, particularly of tax and welfare powers. How that is managed once we get to that point will have to be looked at in the context of the fiscal framework negotiations. I am not at liberty to lift a veil on that, but how those processes are to be managed effectively on a year-to-year basis, including dealing with any issues that may come up between the two Administrations, will absolutely have to be dealt with in that context.
11:00
That is the process of agreeing the fiscal framework. If there is not agreement between the Governments, will the process that you describe be invoked and the issue resolved through the joint ministerial committee, or will it be resolved any other way?
I cannot give you an answer to that question, because clearly the two Governments are discussing that in a separate forum. They will have to work out in that context how to manage issues around the fiscal framework effectively. The only point that I would make is that these are political processes. The Prime Minister runs the UK Government and the First Minister runs the Scottish Government and, ultimately, they are responsible for the smooth working of relations overall. How that is expressed formally in structures will have to be worked through in the course of the discussions on the fiscal framework and intergovernmental relations more generally.
Does Ken Thomson want to comment on arbitration?
I will respond to your earlier question and then I will comment on arbitration.
Philip Rycroft made the point that the relevant section in the MOU is headed “Dispute avoidance and resolution”. Typically, disputes arise because the right people are not looking at the issues, which are problems of attention. Quite often such problems are resolved through a less formal process, which can include Philip ringing me up or me ringing him up and saying, “We need to make sure that people are looking at this issue because it is heading towards a dispute.” The dispute protocol operates in such a way so that people achieve an understanding of each other’s positions and where there are shared interests. The protocol is written in a way that gets good work done on that.
The protocol tries to put a timetable on things so that they do not drift. However, the timescales that are set out are not binding. The Olympics issue took longer than the timescale that was set out, but a solution was eventually found. All that is by way of saying that nobody is in doubt that the fiscal framework is receiving attention and that good work is being done on it. A clear timetable has been set out in the way that the Deputy First Minister has commented on the importance of the fiscal framework outcome for his advice to the Parliament on the Scotland Bill legislative consent motion. I will not comment on the substance of that negotiation, but it is certainly getting a lot of attention and hard work. As yet, nobody has thought it necessary to invoke the protocol that is in this document.
Malcolm Chisholm mentioned arbitration. The protocol was recently amended to include the possibility of independent input. I may be wrong but, to the best of my recollection, that has not happened in a dispute so far. It is therefore an open question whether that independent input could include arbitration. I am speculating slightly, but if the ministers involved wanted it to, it could. That decision would have to be made by consensus.
My experience—I am echoing points that Philip Rycroft made—is that these are essentially matters of politics. Politicians are good at working out an agreement if there is an agreement to be found, or not doing that if there is not one to be found. Would arbitration help? There is a range of views on that. I think that I commented on that the last time I was in front of you to give evidence, and I would say the same thing this time.
That is an interesting point about the external input—I think that that was the phrase that you used. I do not know whether I should know this, but is that written in the memorandum?
It is in the memorandum.
I had not seen that. That is interesting.
My final observation would be that all the issues that you have described are very micro by comparison with the fiscal framework, so some external input may well be useful if there are problems with them.
I will give you one further example. The Edinburgh agreement, which nobody would describe as a micro agreement, was reached by negotiation between the two Governments. The process was essentially similar to the one that is happening on the fiscal framework, and neither Government found it necessary to invoke the dispute resolution procedure, because they reached an agreement through the ordinary course of intergovernmental working. We are not at the point of having a formal dispute on the fiscal framework; we are in a negotiation, and that is pretty normal.
Mr Rycroft, you said that you did some comparative work on intergovernmental agreements across other jurisdictions. You will have found that in some countries intergovernmental agreements are subject to the consent of Parliament and that sometimes Parliament has an opportunity to suggest amendments to those agreements. The legislative consent motions that we deal with here are linked to that—that is the broad mechanism that we use. Given that we will be dealing with more and more shared powers of welfare and taxation, have you considered in your discussions that there may be a case for extending the role of Parliament in giving consent to intergovernmental agreements?
The whole parliamentary nexus is something that we have to consider. Points on that have been raised by this committee, Smith and numerous others. How we manage the relationship between the processes of intergovernmental relations and parliamentary procedures is very much within our purview. On the question of formal involvement, my guess is that Parliaments are able to propose formal amendments to procedures where those procedures are bound into statute. Those two things would be hooked together. If we do not end up in a statutory space, a rather different relationship regarding input from the Parliaments would be required.
I make the point that we are working through the issue in real time. The legislation that is changing the settlements is still going through Parliament and in some cases is still to be introduced to Parliament. Experience of the new settlements will develop once they are implemented—if they are implemented—and as they move forward. That takes us into, if you like, the dynamic relationship between parliamentary accountability, the opinions of Parliaments individually and collectively about how the process is working, the input of that into Governments and how Governments are held to account, and how intergovernmental relations evolve and develop over time.
You will have noticed that the MOU that we have at the moment has been amended and revised several times over the past few years, which reflects the dynamic of intergovernmental relations under the current settlements. I make the point that one should not restrict oneself to looking at a fixed point for parliamentary input but should see parliamentary input as part of the process of scrutiny and accountability. The Parliaments’ proposals and suggestions for improving intergovernmental relations should be put to Governments as matters develop and as we get more experience of intergovernmental relations in the context of the new devolution settlements.
I agree broadly with what Philip Rycroft said, which echoes my earlier point that this is part of the work of Governments and therefore is open to the Parliaments to scrutinise. For example, when committees scrutinise how ministers and civil servants handle the refugee crisis, they could ask how good the intergovernmental working between the two Governments was. The mechanisms for scrutiny are there and their use will evolve as the settlement evolves.
Will there be an opportunity for this Parliament and other Parliaments to see a draft of the revised memorandum of understanding before it is signed off?
That would be a question for our ministers, but we will have the opportunity to take that point back to them.
Finally, would you welcome proposals from this committee and Parliament to your review process on a formal evidence basis?
Over the past few months, we have been very conscious of the input from a number of sources, including parliamentary sources; this committee’s consideration; the Smith commission; the Silk commission, which had words on this; and, as I mentioned, the House of Lords Constitution Committee and the House of Commons Political and Constitutional Reform Committee. Quite a lot of the academic community that interests itself in this area has offered its wisdom, as well. There is a rich evidence base, but you have an advantage of coming to this issue with your current inquiry when the broad structure of the evolving devolution settlements is becoming clearer. Speaking personally, I say that the fruits of your discussions would be enormously helpful to inform our work as we move it forward. We have not reached any conclusions yet, so our door is open and I hope that our minds are open to any input that you would wish to make.
We will take that as a yes.
Good.
Thank you very much for your attendance at this session.
As previously agreed, we now go into private session. I give our witnesses a few moments to leave before we make progress.
11:11 Meeting continued in private until 11:28.