Official Report 667KB pdf
Good morning, and a warm welcome to the 30th meeting in 2025 of the Constitution, Europe, External Affairs and Culture Committee.
Our first agenda item is a further evidence-taking session as part of our inquiry into the transparency of intergovernmental activity and its implications for parliamentary scrutiny. Our witnesses join us online this morning. From Cardiff University, we have Hedydd Phylip, lecturer in law and devolution, Professor Daniel Wincott, Blackwell professor of law and society, and Dr Rachel Minto, senior lecturer in politics. We are also joined by Mereia Grau Creus, head of research, Institute for Self-Government Studies, Barcelona. I warmly welcome you all.
I will begin with a few questions. Following the 2024 general election, the United Kingdom Government announced its intention to reset devolution. What progress has been made in delivering that reset? Perhaps I could come to Dr Minto first.
Bore da pawb—good morning, everybody. It is excellent to have the opportunity to speak to you today.
It is certainly the case that, in intergovernmental relations, whichever Government is at the centre matters. Given the nature of the structures that we have—both the structures that existed prior to the introduction of the new framework in 2022 and the set of structures that we have now—the willingness of central Government to engage positively and, ideally, proactively in those structures really matters.
Since the Labour Government arrived, we have seen a more positive tone to the nature of engagement with those structures as part of the reset. Following Brexit, there have been some real low points in devolution and the relationships between the different Governments in the UK. I do not know whether you could say that Labour coming into power and the reset was a watershed moment, but it was certainly a significant moment in terms of changing the tone of intergovernmental relations.
Notwithstanding that, challenges continue to be attached to the nature of the structures that we have in place and, therefore, the way in which intergovernmental relations can be progressed through those structures.
Thank you. Do the other witnesses want to come in? Do you have anything to add, Professor Wincott?
Bore da—good morning. Thank you very much for the invitation to contribute to the committee’s important work.
I roundly endorse everything that Dr Minto has just said, but I would also want to set it against the backdrop of devolution over the longer term having changed relatively little in the structures and culture at the UK centre.
There is always a sense that the UK centre governs by far the largest part of the UK—England—and the roles of Westminster and Whitehall in relation to England have changed relatively little. They have not had to have a huge culture shift, and there remain quite a number of people working at the centre for whom devolution is something of an afterthought.
One might expect a kind of gradual shift in culture, and I would agree that the election of the Labour Government at Westminster marked a change in tone. However, there were some earlier changes in formal structure. The intergovernmental relations review began under a previous Conservative Government, and that marked a quite significant change in formal structures, although we then saw that while sometimes those formal structures were put into place in a reasonably full-hearted way, at other times, there was a politically driven withdrawal from the centre. I would always set these things against that cultural background, which is very slow to change. Unless and until there is some powerful reason for the centre to start to take account of devolution more, that will always be a slow process, and it will limit the structures.
I will press you on that a little. Is the Whitehall civil service culture the real issue? Is it far less to do with whichever Government is in power?
It is partly a Whitehall issue. Do not get me wrong—there are bits of Whitehall that work very well with the devolved Administrations, by which I mean the parts of the civil service that work to the devolved Governments.
Last week, I gave a presentation during the Cabinet Office’s annual devolution learning week. That seemed to me to show both sides of the issue. There is a fairly high-level commitment to learning about devolution, but there is also a perceived need to teach Whitehall about devolution for a week a year. Do you see what I mean? It shows the willingness but also the need.
I would not limit the issue simply to Whitehall. I sense that the culture of Westminster is significantly Anglocentric. However, even among some members of the Westminster Parliament from devolved places, there is a sense that Westminster is where the real power lies. There is therefore a political dimension to the issue as well. For example, in relation to elected members from the Labour Party in Wales, I think you would see quite a significant cultural difference between Labour members in the Senedd and Labour members in Westminster.
Thank you. No one else wants to come in, so we will move on to questions from committee members.
Following on from the points that have been made about the so-called reset, I will make a number of points on which it would be useful to hear your comments. My points add up to my belief that the reset has not really worked or happened. In fact, from speaking to a number of ministers, I am aware that it seems to have gone backwards in recent weeks after a more promising start.
You will be aware that in around 2005-06, the then First Minister, Jack McConnell, commissioned a report that showed that there was appalling ignorance and something of a contempt for the devolved Administrations at the centre. When we were down in London, the committee considered a report from the Bennett school of public policy, which talked about centralist chauvinism. I would link that to Professor Wincott’s point about the perceived powerful position of Westminster and how that governs things.
From my point of view, the representations of both the Welsh and Scottish Governments made no impact on the repeal of the United Kingdom Internal Market Act 2020; indeed, they were not even considered. We have not yet seen any outcome from the review of the Sewel convention. The UK Government’s position at the time of the independence referendum in Scotland was that the convention would be strengthened and put into law. However, its position now is that, as it said before the Supreme Court, the convention is merely a self-denying ordinance.
The most telling instance, though, is the pride in place initiative, which involves spending in devolved areas at the discretion of the UK Government without any real basis for that spending. For example, the constituency that I represent gets no money from the initiative, despite being one of the most deprived in the country. A central role in disbursing those funds is given to MPs, and the moneys will be disbursed during an election process in Scotland. I also learned yesterday that the Welsh Government was told about the initiative, whereas the Scottish Government was not.
I wonder whether there is a mix in there, with the Westminster system not adapting to devolution. I am conscious that we have been here now for 26 years, yet on Monday we heard from somebody who said that we are still in the early foothills of people learning about devolution, and that it took Canada 160 years. Surely it cannot take that long to learn that there are some devolved Administrations that people might have to take account of.
I know that I made a series of points there, but I would be interested in the witnesses’ views on them. I will go to Professor Wincott first.
There is an awful lot in those comments. I would pull out the point that, inevitably, there will be a mix of political tone, political interests—maybe party-political interests—and formal structures in managing these relationships. It takes a long time for new institutions to bed in. The introduction of devolution—or, in Northern Ireland, the reintroduction of devolution—which happened around the turn of the century, is a fundamental constitutional change.
09:45I am old enough to have been involved in discussions with senior officials in Whitehall around the setting up of the joint ministerial committees early on, at the beginning of the 21st century. There was a big division in those conversations between the academics and the officials. The officials said to the academics, “You’re talking about abstract theories, and we need to make things work in practice. Because we are one civil service, at least in Britain, we can make things work by knowing one another through informality, picking up the phone and making sure problems do not rise to the surface.” The academics replied, “That is all very well and good, but unless you have a reasonably institutionalised set of procedures—whether on a statutory basis or through practice—any issue that you cannot manage will emerge as a highly contentious political issue.” The academics also said that using the machinery on an ad hoc basis would intensify the nature of the political conflict. Honestly, the subsequent practice was, for decades, the informal civil service practice.
The review of IGR potentially marks a moment when those patterns and structures become more institutionalised, but it is very late in the day and means that the process of cultural change and institutionalisation will take a very long time.
That is further affected by the sheer asymmetries of scale and power involved. England is not devolved, although it has form of decentralisation that it calls devolution deals for metro mayors. Basically, there is no legislative devolution in England. Then we have three legislative Parliaments with different names. That asymmetry of power is significant.
For me, it is revealing that the joint ministerial committee that worked most effectively was the joint ministerial committee on Europe. It worked because the UK state had a real interest in ensuring that it was not in breach of its EU law responsibilities. Devolved Governments and legislatures were involved in the transposition of EU legislation, and if they were in breach of EU rules, that would mean that the UK state was in breach. There was a real power reason why that JMC worked. I think that it is important to look squarely at those issues in order to understand what works and what does not work so well in these systems.
On that point—
Dr Minto wants to come in.
Just before Dr Minto comes in, I want to raise another point about something that we heard in London during the committee’s visit. It relates to the ad hoc nature of some of the changes, with the council of nations and regions being overlaid on top of the top-tier meetings and the British Irish Council.
In relation to the JMC on Europe, there is now no consultation whatsoever with the devolved Administrations—for example, there was none in relation to the EU trade deal and Scotland’s fisheries. It just seems to be going a bit backward.
Sorry, Dr Minto—please come in.
Thank you. I note your point about the overlaying of the council of nations and regions. I think that people are still trying to understand how that fits into the existing intergovernmental structures.
I had actually requested to come in before Dan Wincott mentioned the JMC on Europe. I do not want to present this in a motherhood-and-apple-pie way, but it is worth remembering that there was a period when there was some more institutionalised and more effective intergovernmental working around EU policy through the JMC on Europe. As Professor Wincott said, there were some very real political incentives for that, given the responsibility to transpose European legislation, but there were also some organisational structures in place that made that intergovernmental working easier. I think that that is something that can be brought into the system now.
There were regular meetings that were attached to European Council meetings—there was a regularised schedule, and it was clear that the agenda was attached to the external European agenda. Through that continuation of regular working, you saw the development of very positive—or more positive—relationships at a ministerial level, but also at an official level.
This is perhaps something that we can discuss a little later, but the devolved Governments had their own routes to representation and influence within the broader European political system. I wanted to reference that because there is some learning there that could be quite usefully drawn into making today’s structures work more effectively.
Thank you.
Good morning. We have touched on some of the areas that I want to cover. I will come to Professor Wincott first. When we were in London, we heard some things about the balance between formality and flexibility, particularly at official level, but above that, too. Will you give us your thoughts on that?
These issues are tricky. It is important to emphasise that confidentiality is an essential feature of some such discussions. In conversations between officials or between Governments, some things are sensitive, for a host of reasons. People need to be able to try out positions and have open conversations. It is critical to acknowledge and recognise the need for confidential spaces in such relationships.
Equally, as elected members of Parliaments, you need to have good knowledge of what is going on in order to hold your Governments to account. My sense is that the informality of practice and the traditions of UK civil servants—and of some parts of the political system—bend towards confidentiality as a kind of blanket. That is used, in combination with the informal and often ad hoc arrangements that are in place, to treat giving out information as the exception.
Generally speaking, if such intergovernmental bodies produce any public record at all, many will provide limited records that say who was there and perhaps mention the topics that were discussed. The need for democratic scrutiny should bend more in the direction of providing greater information.
There might be scope for thinking about how committees such as yours could be given privileged access to some information to allow you to do your role on behalf of your electorates, without necessarily bringing everything fully into the public domain. It seems to me that those issues are at a very early stage of being addressed.
I will put my hand up and say that I was surprised at how far the Conservative Government in London and the devolved Administrations got in developing the new arrangements under the review of intergovernmental relations back in 2022. Things such as an impartial secretariat are emerging through that new architecture, but they do not seem to be fully institutionalised and their role is not well understood yet. There is at least some possibility that those elements will strengthen, although the political mood music around IGR seems to be moving around a bit—I would not quite call it a political football; I am struggling to think of a metaphor for something that seemed to be going in one direction and then shifted around a bit.
I am sure that my colleagues have more interesting things to say on the subject than I do, so I will end my remarks there.
I will quickly come back on that. Does the process at the moment involve a kind of well-intentioned trial and error? Will aspects be formalised as they are deemed to work or to be successful? Is that simplifying the situation a bit too much?
Some things, such as the institutionalisation of an independent secretariat, would make a significant difference. That is well intentioned and is moving in a good direction, but other things are moving in other directions.
In my initial remarks, I referred to the relationship between legislative devolution in Scotland, Wales and Northern Ireland and executive metro mayor devolution in England. There are some similarities across those two modes, but calling them both devolution obscures at least as much as it illuminates. For the current Government in London, there are political reasons for leaning into and supporting the development of metro mayors in England, which perhaps obscure some of the distinct issues that relate to the position of devolved Governments with legislative Parliaments in Scotland, Wales and Northern Ireland. That is to do with a Government’s responses to the political landscape in which it finds itself and the political challenges that it sees itself as facing.
I will echo some things that Dan Wincott said and speak specifically about formality versus informality. We need to remember the context in which we are working, which is that the UK’s constitutional landscape is inherently informal—informality is its modus operandi. Under the IGR review, there was a real attempt at formalising and regularising structures, but the comfort zone is to fall back into more informal structures—as with the overlaying of the new council of the nations and regions, which Rachel Minto talked about. That stuff is understandable, but it is unhelpful when you are working towards strengthening or formalising structures that we have worked hard to establish.
A benefit of formalising structures is that it gives some protection from waiting on the whims of a Government’s political colours or political preferences. A more formalised system at least sets an expectation about what Governments will do together and the areas that they will collaborate in or at least discuss.
The minute that you fall back into less formalised structures, you are leaning back into political relationships or political difficulties. It gets even harder to get to a point where those of us who are on the outside of structures can understand what is going on and scrutinise them, which leads us into a host of problems. I would be nervous about moving towards more informal structures again.
10:00
I am glad that you came in there, because I was going to bring you in. Are the processes that are operating now and the informal structures that you warn against what we have seen all the way along under devolution, or has devolution involved a more formalised process for scrutiny, decision making and relationships?
Over the course of devolution, we have seen various attempts to make things such as the JMC feel like more formalised structures, but the way in which some processes were adopted while some were not used at all indicates that informality was the preference. Whether we are in the foothills of devolution or whether we are 26 years old, as it were, the context now is not the same as when we started. We are right to expect and to push for more formalised processes, because they will provide the only backstops against falling into political brouhaha versus grown-up discussions about issues.
Good morning—bon dia—to everybody. I am here as the foreigner, and you have the expertise on the UK, but I have the expertise on a rather similar system, which is the Spanish one, although it has a different structure and is very regulated. Everything that you have said about informality is not the case in Spain, where the system is absolutely regulated, but the debates and the issues are still the same.
Would more formal structures or institutions help? We have everything formalised, and we lack accountability, transparency and—even more—co-decision, which is one of the issues that concern me more after reading all the documents.
My experience is from working on intergovernmental relations in Spain since I started my PhD 30 years ago. One point is that, in all the aims to establish mechanisms, institutions or whatever, nobody thinks about the expertise in the human resource of the public officers who are behind that. Usually, intergovernmental relations structures focus on policy sectors. We tend to bring in experts on the material substance, but we leave out all the people who know about the distribution of powers, which is one point on which Spanish experience could be relevant.
We need that double system with double expertise in all the intergovernmental relations institutions. We need people who know about the powers and not just about a sector. That would help a lot to build up the trust that seems to be lacking.
Thanks very much. I want to ask Hedydd Phylip about something that came up regarding officials. I think that this point has just been made, but is there enough experience of the devolution side among UK Government officials and enough experience of the challenges for UK officials among officials from the devolved nations? Are there opportunities to build a better understanding? Professor Wincott mentioned the one-week “Let’s talk about devolution” event. Could there be more interaction on that side of things, such as through secondments or officials from each side spending time understanding some of the challenges?
That is a great question. On the one hand, there is one civil service, and so surely we can advertise for jobs widely and invite civil servants to travel and spend some time doing secondments. I know that some of that has happened. However, on the other hand, I think there is some difficulty about ways of working, such as the fact that remote working is becoming the norm, so there is a question about whether those who are on secondment are on secondment virtually or are travelling.
We know from the literature that churn is a hallmark among civil servants—they spend a certain amount of time in their roles and then move on, so whatever expertise they end up gaining, they take with them to their next role. The new person who fills their shoes then needs to find a way to gain that same expertise. So, there is a question about civil service churn and how to maintain institutional memory of devolved matters.
Lastly, as a general reflection, I suppose that, sitting in the devolved places, we see everything through a devolved lens, while, for civil servants sitting in London, either things are in a devolved box or they are not. I am sure that, if they were to ask any of us about any of the issues that they are working on, we would be able to find a devolved angle whether it is within devolved competence or whether it is to do with that jagged-edged bit of the process that hits upon some issues that are devolved and some that are not—the issues that are often raised in consideration of legislative consent motions. There is very little that we in the devolved places could not help but make devolved in some way; there would be a devolved angle to all those issues. Part of the challenge is how you mainstream understanding across all Whitehall departments. Devolution is not just a thing that should be of concern to a certain number of people sitting in one place; it is a factor and a question that officials should be asking in every department at most points of the policy-making process.
The point has been made that certain departments have a greater relationship with devolved issues than others. Perhaps some do not have any relationship, but there is probably a knock-on effect. I will leave it there unless anybody else wants to comment.
Good morning. I would like to focus on the comments about how those who are outside these structures are supposed to hold the process accountable.
I accept that there will always be a need for a degree of confidential space between the Governments for them to be able to discuss issues and understand each other’s perspectives on matters that are not yet ready for public discussion. We can all accept that there will be ebbs and flows in tensions or potential hostilities, whether from party politics or other factors.
However, I am concerned that, even when things are working well and there is less tension and less party politics getting in the way of discussing issues, agreement that works well between the Governments is still opaque. That is about the Governments making decisions in a grey-area space, which they announce to their respective legislatures and to the public when it is already too late to influence them, because the Governments have signed them off.
I accept that there will always be a need for confidential space, but should we not also assert that there needs to be space for public scrutiny, including by the multiple Parliaments of these islands, whether that is formal reporting requirements in the intergovernmental machinery, the council of nations and regions and so on, or the possibility of MSPs, MPs, members of the Welsh Parliament and others formally questioning ministers, including those from Governments other than their own, about the matters that are under consideration, before decisions are reached? I would like your views on whether that is a missing piece of what should be more transparent machinery.
It is very difficult to provide an answer. The point is that, at least in Spain, we usually understand accountability by the final outcome. The report is sent and the Parliament or whichever legislature has a look at it before decisions are made. I do not see how to do that without making all the processes very long and difficult. We are in a time when the private sector is making decisions very quickly in strategic areas such as artificial intelligence and the location of firms. Organising intergovernmental fora where all actors have to intervene before decisions are made would make the process very long.
In any case, just to say something that I hope does not sound strange, the Trojan horse strategy is always the best. Twenty years ago, the Catalan Government started to think about having mixed commissions between the Government and the Parliament in certain areas. That experiment did not last because of a lack of political trust because the representatives in the commissions were designated by the parliamentary groups, which generated problems. However, exploring that sort of mixed commission could help because it would be a way of having a unit that connects the two levels or the two arenas or dimensions of the process. That would be my answer.
Are there any other views?
I have done most work on the question of scrutiny, IGR and interparliamentary relations, so that is a question that I was hoping you would ask.
I strongly believe that we need greater or more ways of holding our Governments to account on the decisions that are made through intergovernmental processes. I completely recognise the point that Mireia Grau Creus made about how difficult that can be. I am not sure how agile our current intergovernmental structures and decision-making processes are at the moment and whether that could be a barrier to legislatures having at least a pipeline to a better understanding of what is going on, even if that cannot be a whole and complete understanding, due to concerns about confidentiality.
10:15The Scottish Parliament and the Senedd each have an interinstitutional agreement with their Governments and a promise as to the provision of information before and after IGR meetings. I understand that the committee has done some work looking at the success or otherwise of that agreement and whether it should be reformed.
I pay homage to Professor Nicola McEwen and her colleague Coree Brown Swan for the report that they wrote for you. I noted with interest the concerns raised that, despite commitments made by the Scottish Government to the Parliament with regard to communication, written explainers of what has happened in meetings are not getting to you. If those things are being communicated, they are not necessarily published. That is interesting, because it is not what we are seeing in the Welsh context. In Wales, the interinstitutional agreement is yielding reasonable results with regard to the prior notice of meetings and our getting a kind of readout, maybe not straight after the fact but within a decent timeframe—a written statement by the Welsh Government explaining its position on things. The written statement will often say, “I did this”, “I said this”, or “I thought this was important”. That does not get us to the point of understanding what decisions are made, but it does get us to a point of being able to hold that Government to account for its opinions and for what it is taking to the table.
I am not sure how you as a committee or the Scottish Parliament might go about persuading the Scottish Government to be forthcoming in its correspondence to you. Maybe the interinstitutional agreement needs looking at either before or after the election. I certainly think that it is not good enough to not be able to ascertain what the opinions of our Governments are in these fora.
We talked about intergovernmental meetings and the decisions that are made. Those decisions can vary widely; they can be decisions over policy or about the introduction of legislation, both primary and secondary. I think it is legitimate for Parliaments to know that they can expect to see the outcome of those processes in their own structures. For example, you might see an LCM or scrutinise a bill or a piece of secondary legislation, so it is useful for you to know how that was produced—was it made by agreement in a common frameworks process or IGR mechanism, or in a different meeting? It is important that we ask for such information at every stage of the scrutiny process. We cannot wait for the Government to decide off its own back to provide us with that information. We need to press constantly for it at all stages and not leave it to when we talk about IGR. It needs to happen at every point.
That is fair. I suspect that it might be something of an understatement if I say that some of my colleagues would be sceptical that relying purely on our ability to persuade the Government to be forthcoming is enough. Some of our colleagues would trust that that might happen and some would be deeply sceptical about it.
I guess that my emphasis on trying to have some scrutiny before decisions are made is in the context that, for roughly half the history of the Scottish Parliament we have had a minority Government. In the Westminster culture—and some of this came across in the experience we had in our visit to London recently—there is almost an expectation that the Government is naturally the source of authority rather than merely a body to be scrutinised. In a period of minority government such as the current period, the Government still has the right to make decisions such as the signing off of common frameworks—let us assume that progress is made, at the tail end of this parliamentary session, on the signing off of common frameworks—and although, in theory, no Government can bind its successor, the UK Government would strongly expect that a common framework put in place will last through successive changes of Government.
However, if we simply accept that common frameworks have been signed off, that will constrain the ability of future devolved Scottish Governments, whether they have a majority or not, to make decisions on devolved matters, and that constraint will have been put in place by a minority Government, without the consent of Parliament. My concern is about the legitimacy of decisions that are being made in a Government-to-Government relationship without being held to scrutiny.
Those are fair concerns for you to have, and they were probably raised right at the start of the post-Brexit, post-referendum era, when the structures were being set up and the notion of common frameworks was beginning to rear its head, because we would be taking over areas that had previously been within the purview of European Union law and EU institutions, made in the context of complex but robust processes that gave voice to different stakeholders, institutions and institutional concerns. In the process of withdrawing from the EU, what we see is a shifting of those responsibilities to more opaque structures. Although they are intergovernmental, it is a problem with the process, and it is something that we raised at the time.
Let me row back a bit to the relationship between UKIMA and the common frameworks. UKIMA is the legislative backstop for the managing of divergence, with common frameworks coming in as the softer, intergovernmental fora for the discussions. Should an incoming Government be unhappy with the common frameworks, it would have to reopen those conversations, however difficult they might be, with its colleagues in those intergovernmental fora. However, it would be difficult to legislate differently from what is in the common frameworks because of the existence of UKIMA.
Thank you.
Does anyone else want to come in before we move to the next member? Dr Wincott—sorry. Professor Wincott?
No worries. You can call me Dan if you want to.
Thank you.
I amplify everything that Hedydd Phylip just said. I suggest to the committee that strengthening your connections—in this case, for example, with the Senedd and Senedd members—and looking at the evidence that the Welsh process is generating might be useful for you. This is absolutely Hedydd’s expertise and not mine, but relations among the Parliaments can be important in counterbalancing the intergovernmental relationships. There are all sorts of problems in intergovernmental relations, but, in a system in which two legislatures have responsibility for policy making in Wales, Scotland and Northern Ireland, intergovernmental relations are inevitable. I think that a lot of the difficulties that we see in the UK are connected to a lack of clarity about the complex and variable distribution of competences between different Governments.
Whether we are in the foothills or in the early adulthood of devolution, we have seen fundamental changes. Brexit fundamentally changed the operation of devolution. The United Kingdom Internal Market Act 2020 is also a fundamental change in the operation of devolution. It was, and it has been, a political choice. It was a political choice of the Johnson Administration and it is a political choice of the Starmer Administration not to revise UKIMA. It has changed the practice around the legislation—significantly, perhaps—creating more space for exemptions from its provisions, but those exemptions are not in contrast to the EU legislation on which it was—I was going to say “on which it was modelled”, but “from which it borrowed language” would be a more accurate way of putting it. Policy exemptions of various kinds were written into the legislation and then, through legislative processes, imbricated into the market access principles at the EU level. However, they do not exist in that way in the current arrangements for the UK, and that has enormous and enduring consequences, which the current UK Administration has chosen to maintain.
Thank you.
I am one of those colleagues whom Patrick Harvie identified as not trusting Governments. I believe that we need strong parliaments and transparency, which is why the language around the reset interests me. We are almost repeating the messages that the Labour Government is giving about an improvement in tone when the actual output evidence, based on the number of meetings that are being held within the structure, including the two meetings that have been held of the council of the nations and regions, suggests that there is more rhetoric than reality.
Can I have a quick around-the-table on the reset and what it means? No long answers are required, because I think that I already know the answer, but I would like to hear it from you, as academics.
There has been a change of tone, and that is not insignificant. However, the tendency towards continuity is a feature of the system, and there is a significant amount of continuity. Any change of tone is fragile, and I agree that the changes have not been consistent or consistently maintained.
I suppose that you, as members of this committee, and those of us who are speaking to you and previous academics who have spoken to you are also in an absolutely infinitesimally small minority of people who pay a lot of attention to this stuff and try to figure it out. It is an enormously complex and baroque system. If you are thinking about transparency and holding people to account, that is very—
Governments count on the fact that few people are watching and listening, but that is exactly what we are here to do, as you know.
I would reiterate what Dan Wincott has said and emphasise the fact that it can be quite a fragmented picture. We have dozens of these interministerial groups, some of which are meeting more regularly and seem to be establishing some pattern of working and others where it seems to be slightly more—
I put it to you that they are not meeting very regularly. I have the numbers here. Some of these committees have met only once, including—astonishingly—the interministerial group on UK-EU relations. We have to be careful that we do not get caught up with the surface veneer of what we are being told. In reality, nothing has changed.
Can I comment on the UK-EU point?
Yes, of course.
10:30
This is particularly significant in the context of the reset, and also in the context of the UK-EU reset. There are to be nine meetings of the UK-EU interministerial group, although there have not been communiqués issued from all of those. I believe that the first five meetings did not issue communiqués, but brief communiqués have been issued from others. That raises an important question about the role that the UK-EU interministerial group is supposed to play as part of the future reset UK-EU relations. I absolutely agree with your point that you need to dig down into the data and that it can be difficult to get full information. I believe that that interministerial group does not have all its meetings fully listed on the UK Government website.
Thereby hangs a tale. We have a system and a structure. It is looking through a glass darkly, to use a biblical phrase. Can we go to Hedydd Phylip? I hope that I am pronouncing your name properly, Hedydd.
Yes, that is perfect pronunciation.
Excellent. That is the Welsh blood in me.
Wonderful. Da iawn.
I would echo what Dan Wincott and Rachel Minto have said. A change of tone is not nothing, even if we might feel that it is insufficient. We have also had the UKIMA common frameworks review. Again, it does not go far enough for many of us, but that has happened, whereas the previous Government was silent on that. We are waiting for the memorandum of understanding on the operation of the Sewel convention. It would be great if we could get clarity on that.
If they can agree anything.
If we could get something from that, which they have promised, it would be great.
Is there not a context to be considered here? Previous Governments, since 2016, were dealing with two epoch-type events with inadequate structures—hence the political crises that followed intergovernmental relations at every twist and turn. Brexit, of course, led pretty much to a breakdown of relationships between the Governments at times, and the other event was the pandemic. We are not in those situations now and we have structures, but the structures seem to be very loose.
You said earlier—I am not sure that I agree with this, but I am happy to quote it back to you—that informality is the modus operandi of our constitutional working. In fact, if you look at the work of a UK minister or even a Scottish minister, there is not a lot of informality about what they do. Everything is recorded—everything that they do and every meeting. The same formalities do not exist in these structures, even without the crises-making context of Brexit and the pandemic.
I do not want to get into the weeds of the definition of formality. Maybe things are written down, but did we expect those things to happen? Do we expect them to happen again? Are they happening in the sense of a framework and systems? Maybe that is what I meant by formality. Maybe the phrase I should have used is ad hoc—there is an ad hoc nature to it. Thank you for pulling me up on that.
I agree with the use of the phrase ad hoc, because that is exactly what we have. We have a form of structure but not actual structure, and we have ad hocery, which is how we seem to do everything.
Yes. You talked about the two epoch-type events and asked where we are now.
Yes.
Earlier, you also said that you are interested in outputs and asked what we are seeing.
Yes.
It is interesting for us to reflect on that, because, as you said, we have had two epochs in which we have had big P political discussions being fraught and difficult while, underneath that, we have seen outputs that have indicated a degree of common working and conversations happening. The extent to which we have seen an increase in legislative consent memoranda and those being granted is evidence of such—
Well, not really, because the LCMs that were contested here and in Cardiff were all Brexit related, and in both Parliaments the majority of people were unprepared to accept the result of the referendum. I think that we are comparing apples and oranges if we say—
I am sorry to interject, but I am not talking about the instances where the Parliaments have rejected consent; I am talking about the instances where consent has been granted and the Governments have agreed that consent should be granted. That is evidence of a degree of common working between the Governments, even when the politics is difficult.
I am not sure about that, if I am honest with you, Hedydd.
Can I broaden the discussion out and bring in Dr Grau Creus on the Dunlop review of intergovernmental relations, which was published in 2022? The work was done before 2019—it was set up by Theresa May. Why have the recommendations of that review not been fully implemented, especially in respect to the secretariat? I think that that is the hinge issue in terms of transparency, the frequency of meetings, the quality of meetings and parliamentary scrutiny. Why has that not happened?
From my foreigner perspective, I have to start with the previous questions about the reset, because, as I said, I am not an expert on what is going on.
To me, a reset can happen in any direction. Your leaving the European Union is already a reset, because one thing that glues the European Union is the single market. Now, with your single market, you have to define yourself. However, the focus of devolution is now unbalanced towards the UK central Government, by which I mean the Parliament and everything else. A reset in terms of political willingness has to be taken as a good indicator if it means what it says. However, be aware—you probably know this—that, if central Government, like central Government anywhere in the world, controls the unity of the market, it has control. In the American system, the commerce clause in the US constitution helps the American federal Government to intervene in everything. It is the same in Spain.
I suppose that you are asking why it has not worked before, right?
Andrew Dunlop’s review reported in 2022, and my reading of it was that the hinge upon which the structure would work, which would determine how the meetings would be conducted in terms of qualitative control as well as their frequency, was going to be an independent, outside secretariat. However, as has been touched on, the current secretariat is inside the Cabinet Office of the UK Government. An independent secretariat doing the work to make this happen has not been delivered.
Yes. I see what you mean. The comparative perspective says that, usually, the one that holds the meetings, sets the agenda and establishes the rules, because it has the financing power, is central Government. In establishing an independent secretariat, who would be in charge of defining that secretariat? I do not know the answer. Who would be the members of that secretariat? In the Spanish system, everything that is controversial goes to court—either the normal judicial system or a constitutional court. If you think in terms of an adversarial perception of intergovernmental relations, everything will be a conflict—everything—and people will go to the secretariat, the courts or whichever unit is established to deliver a solution.
It is perceptive that you say that, because central to the Dunlop review was the secretariat but also a dispute resolution mechanism.
I will ask the others to comment on the Dunlop review. To me, we now have a structure, but we do not have frequency of meetings, we do not have train tracks and we do not have a rail timetable. What we have is a schematic outline of something that happens when someone decides somewhere that we will have a meeting. That does not seem terribly satisfactory if we want a joined-up and mature process of intergovernmental working.
I agree that the role of the secretariat is important, and I do not disagree with you that the secretariat as it currently operates does not fully embody the vision for the secretariat that Andrew Dunlop put forward.
Before this meeting, I listened back to a previous group of academics you spoke to in October, and I defer to my colleague, Professor Nicola McEwen, on this particular matter. My sense of her evidence is that she feels that the current secretariat is moving in a direction and is living up more than your question suggested to the aspiration that it should not be the creature of any one of the Governments, but that it does not fully embody Dunlop’s proposals. I do not know whether that is a glass quarter full or a glass half full.
As I say, political processes can be extraordinarily slow, and they do not always move in one direction. I guess my assessment—and it is nothing more than an informal assessment—is that the secretariat facilitates IGR better than previous arrangements but it is not what Dunlop envisaged or proposed. I know that he drew on other examples; Canada was perhaps particularly significant. There are working, lived examples of how IGR can operate in other situations.
You mention Canada, and I am sure at the forefront of consideration—you can see this in the review that Dunlop produced—was the idea that there ought to be a rewiring of Whitehall. You started off talking about the Whitehall conundrum and the one week a year when it has a devo focus, whereas devolution has transformed our constitutional working arrangements, which means that the wiring is out of date in many instances in Whitehall, and so is the culture.
I appreciate that I will run out of time, convener. Rachel, would you like to comment? Then we can hear from Hedydd.
I will also defer to the evidence given in your session last month and emphasise that a significant addition—or change—as part of the new intergovernmental relations machinery is the dispute resolution mechanism. That is potentially an important and significant advance, in that independent arbitration will be part of any dispute between a devolved Government and the UK Government. That is yet to be tested, but it is an important addition to the new framework.
10:45
I understand that a dispute is currently going through the mechanism—I had not been aware of that until this week.
Hedydd, do you have any final comments on the issue of Dunlop, the secretariat and the dispute resolution?
I would echo what both Dan Wincott and Rachel Minto have said—I have nothing more to add.
Thank you all for taking on my questions.
Good morning, everyone. Professor Wincott—or, given that I am talking about building relationships between Parliaments, I will just say Dan—has suggested that building relationships between the Scottish Parliament and the Welsh Senedd could be valuable, noting that both Governments do that. What are the panel’s views—and Dan’s in particular—on strengthened interparliamentary co-operation between the devolved legislatures? Does it require a formal mechanism, or can we achieve it through informal channels? How would the arrangements work in practice? What would be the benefit to the scrutiny of intergovernmental activity?
Thank you for the question. I would say that both formal arrangements—some are available—and informal connections are important, but I absolutely defer to Hedydd Phylip, who is the expert on these matters. I suggest that you will get more depth and interest from her than from me.
Thanks, Dan, for that teeing up of my interests.
As I alluded to earlier, interparliamentary relations is a core part of the equation, and it is relatively underdeveloped in our current system. In the post-EU referendum and EU withdrawal era, we have seen the interparliamentary forum on Brexit evolving into the interparliamentary forum. As the committee members will know as regular attendees of the forum, it is a well-respected forum, especially by the devolved legislatures.
The forum has managed to sustain a relatively regular programme of meetings, but I would describe it as being in a bit of a holding pattern. Everybody thinks that it is a good idea, everybody wants to keep it, and everybody wants to keep the lines of communication open for exchanging views and information, but there has been a slight lack of focus on where it goes next and what is next for the forum. Essentially, it is an ad hoc informal structure, despite the fact that it is more formalised than any other interparliamentary connection.
There is a job of work to be done for the legislatures to think seriously about what they have capacity for, how they would resource a more formalised structure, and what that formalised structure might want to do. There is a whole heap of cross-cutting issues—we have discussed some today—such as the UK internal market act, common frameworks, divergence across borders and the new relationship with the EU. One could envisage an interparliamentary structure having the ability to talk about all those things.
The key point coming out of my research is what is happening in the Westminster part of the picture, particularly the House of Commons. From the analysis done on the papers emanating from the interparliamentary forum, we see a consistent attendance from the devolved legislatures and, generally speaking, the House of Lords Constitution Committee. It is obvious that the Public Administration and Constitutional Affairs Committee in the House of Commons is interested, but there is not a consistent attendance. Generally, it is somebody new who attends from the Commons, and that is holding interparliamentary relations back.
We talked about LCMs before. That is part of the intergovernmental picture and definitely the interparliamentary picture. The Parliaments and legislatures have a real opportunity to combine forces in relation to the scrutiny of the legislative consent process, and that might go some way to correct what a Senedd committee has called the democratic deficit emerging from the increase in LCMs.
I am interested in the LCM question because, for my sins, I used to be Minister for Parliamentary Business, and I am aware of the issue. It also links to the relationship building, as my Welsh colleague and I used to almost tag-team in various intergovernmental meetings. Those relationships are important, and they are important from a parliamentary point of view as well.
With LCMs in particular, there is always the impression that everything is sent through at the last minute to the devolved Administrations. If there was a process, as you suggested, that gave Parliament the opportunity to get involved, that could make a big difference in the transparency of the whole scenario.
Yes, it could make a significant contribution.
On the lateness or not of LCMs, the fact that they are tied into the Westminster timetabling is inevitable but unhelpful. We are also seeing that the LCM process triggers a more involved process of scrutiny in the devolved legislatures as compared to the Westminster perspective. Westminster understands the consent process to mean waiting for a yes or no vote; it does not have a process to receive information on what the devolved legislatures are thinking about the consent process. It follows that there is nothing to enable the devolved legislatures to either scrutinise the content of the LCMs or indeed make comment upon the text of the legislation.
There is a way to go, but there is a real opportunity to better feed into some of the processes. Despite the fact that parliamentary timetables are sometimes brisk, Parliaments still have to go through stages in their scrutiny processes. One could rightly envisage, as part of one or other of the stages, the opportunity being brought in for the devolved legislatures to make comment. Whether that is through the interparliamentary forum or another mechanism, it is something for the legislatures to reflect on.
Finally, when we were down in London, we were given international examples of where interparliamentary relations work better. Keith Brown has mentioned Canada, which has interprovincial legislative co-operation, and Germany, Australia and Belgium have interparliamentary co-operation between the federal and regional governments. However, those are all federal states. Our key problem is the fact that, although our ad hoc unwritten constitution is flexible and may be helpful, it is at the same time holding us back.
Yes, the asymmetry of the devolved system plays out in unhelpful ways, and that is also true in this equation. There is no joint legislative mechanism. Even when the devolved legislatures agree that a joint UK act would be the best way forward in a devolved area, Westminster is the one to see that process through. We do not differentiate between processes.
That does not mean that we cannot push for and make the case for better processes that would improve scrutiny. That should be in the interests of the Commons, the Lords and all the devolved legislatures. The Commons and Lords should feel more at ease with the scrutiny decisions they make when they have heard about how the issues would play out according to the devolved legislatures, which have the expertise in the devolved areas and are used to legislating over them. There is a democratic logic in the devolved legislatures having input into the LCM processes in Westminster, even if the asymmetry of our system is rather unhelpful.
Thank you. It is worth reminding people on record that the deputy convener and I take part in the IPF, and we have encouraged the other subject committees of the Parliament to reach out to the committees in the Senedd and Stormont on key areas that they might have a shared interest in.
Good morning. We are all keen to see effective intergovernmental activity and effective scrutiny of that activity. We have discussed a range of different things that could be done to improve that, most of which will involve some cost in terms of time, expertise or resources. What additional resources—cost as well as time—would any changes that can be made involve for the Government and the Parliament? To what extent is it worth spending that resource? I am sure that lots of measures could be taken. Could resources be found within existing budgets, or does extra money need to be spent on it?
I will start with Mireia Grau Creus. Given the formalised structure in Spain, can we also assume that more resources are spent on IGR there?
IGR in Spain is extremely hierarchical and depends on central Government. That is basically also because the system was built before we were in the European Union, so it was central Government that decided how to organise things.
Again, central Government does not think about the powers of the autonomous communities. It has an inertia of working. I find that central Government has an extreme capacity to know about what is going on in the autonomous community Parliaments and Government because it has the resources, and not just economic resources, as the professional careers of people are focused on going to Madrid, not on living in the autonomous communities—basically, they go where the good jobs are. We find that the autonomous communities do not have the human resources to follow up what is going on.
Therefore, spending money or resources on reinforcing the expertise and the capacity to attract talented lawyers or political scientists to work in these areas is worth it. It is worth it because the way in which your system is built is also hierarchical. It will always balance toward the centre. The centre will, by definition, have more capacity to lead the system. Even if now there is a reset and it is clear that the tone is different, if it depends on the political mood, that can change.
Therefore, briefly, the answer is yes. It is not just about the economy. It is about having a good pool of experts working in the area, not just in sectoral areas but also in knowing exactly how the distribution of powers works and what the challenges are. All distribution of powers has a moment in which everything explodes—transgender issues, climate change—because how does it fit? Briefly, yes, spend more resources.
11:00
Thank you.
I absolutely recognise your concerns about how resource intensive intergovernmental and interparliamentary relations done properly will be.
There are significant bandwidth issues, to put the point in a slightly different way. My sense is that the baroque nature of the arrangements—having people involved in a range of common frameworks, in formal IGR, in the council of the nations and regions and in legislative consent motions—ramps up those resource costs and ramps up those bandwidth issues. Putting resource into the IGR and IPR space is important, but having such a complex and variable and shifting set of structures causes real bandwidth issues.
It causes particular bandwidth issues in Wales, where the scale of the civil service that supports the Welsh Government is relatively small and where, for historical reasons, although it is about to increase, the Senedd is tiny, with 60 members at the minute. These are significant issues and significant demands are being made.
I am an academic, so I could describe a simplified but robust system of IGR that would have significant resource implications. It would involve reforming the United Kingdom Internal Market Act 2020. It would involve changing the role of the office for the internal market, which is a significant resource at the UK centre whose mission is to keep the UK’s internal market barrier free or to make it barrier free. The UK’s internal market is mostly barrier free anyway; it is not like the EU, which was moving from segmented state-based markets to one integrated market. It raises significant issues of various kinds, but the devolved Governments have to pay attention to what it is doing because it then impacts on how they operate.
All those things raise significant costs, inevitably, but, for me, there is a strong argument against the complexity of the current system on its cost grounds. However, politically, realistically, I recognise that we will not have a moment when people say, “Let us all sit down and write a rational system.” There would not necessarily be a consensus across the different parts of the UK on what that might be.
Also, the EU reset will make those issues more challenging, bearing in mind that, historically, when the UK was a member of the European Union, devolved Governments played a significant role in transposing EU rules into domestic law. Those EU structures were designed to give domestic actors a margin of manoeuvre in how they implemented a common law—a shared internal market law across the EU—whereas now we are potentially having dynamic alignment. The assumption seems to be that that will be primarily through secondary legislation at the UK level, bolstered by the structures of the UK internal market and scrutinised technocratically by the office for the internal market. All those things ramp up the costs on the devolved systems to be able to make legislation in the framework of, or under the shadow of, the new arrangements. Some serious challenges lie ahead, which, to go back to the devolution reset, have not been thought about systematically across the UK level.
I agree with what has been said before, but I will focus a little bit more on scrutiny and resources, and we can maybe reflect on the low-hanging fruit. Neil Bibby’s question presupposed wholesale change and significant institutions being created or amended, but there are significant opportunities to embed some of the scrutiny and questions of the IGR processes from within the system that we already have.
To illustrate, when we get a statutory instrument before us, are we asking whether there was any intergovernmental working that helped with the creation of the instrument? When we ask the scrutiny questions of the legislation that is before us, are we asking the IGR questions to try to understand what the IGR system looks like? Does it feel like it is successful? Are we trusting that our Governments are speaking on our behalf? When we are given that information, are we pulling it together? Are we able to assess what we already have without thinking that we need to go out and create something else or commission something else?
There are many ways in which we can introduce these questions into our current processes and procedures and then encourage communication, making sure that committees are talking to each to each other and that fora such as the Conveners Group are able to reflect on what is being said in one committee over the other. You can use the resources that you have and amplify them a little bit to try to enhance our understanding of what is going on. Then, hopefully, if you do need a more enhanced or sustained transformation with the allocation of resources, it can be done with more confidence because you will have covered all the ground possible already within the systems that you have.
Thank you. That is a fair point. I do not know whether Rachel Minto wants to say anything about resources.
No.
No—that is fine. Thank you.
I will ask one final question. We talked a little bit about the review of the trade and co-operation agreement and what that might mean for dynamic alignment and changes in those areas. Do you have any thoughts on the keeping pace powers? How successful has that commitment from the Scottish Government and from the Welsh Government been, and do you think that a review of the trade and co-operation agreement might impact on some of that?
The keeping pace commitments have looked a little bit different in both places. Whereas the Welsh Government made oral commitments to that effect, the Scottish Government legislated for it. My understanding of that—and it is a tenuous understanding, I will admit—is that the degree to which the Scottish Government has decided to legislate to keep pace has not been incredibly clear. Whether it makes much practical difference to how it operates is a question.
The issue of dynamic alignment poses a fundamental question of the structures that we have been talking about. It requires the re-establishment of things that might have gone by the wayside post-EU exit. It also probably requires the introduction of a whole host of statutory instruments. It will require legislation that involves resources. We are doing all this, of course, in the context of a trade deal that is inherently between the UK Government and the EU, which, again, is fundamentally different from the situation that we had before as EU members. We had all those different ways of interacting with the EU and different institutional structures that allowed for different voices to be heard at different points. The dynamic alignment poses significant questions for both the legislatures and the devolved Governments. It will require resources and require some hard thinking about how they balance the need for them to do it themselves to honour their devolved commitments, and the realities of rolling that out.
In that respect, we will probably expect a degree of the UK Government doing it on everyone’s behalf, which is, of course, a nervous place for us to witness from, having already seen the extent to which the UK Government legislated on our behalf in respect of withdrawing from the EU. We are right to be concerned about how that will work out.
I agree with everything that Hedydd Phylip has laid out beautifully, but I will mention a couple of points.
This brings to the fore the role of the intergovernmental machinery that we have, in particular the interministerial group on UK-EU relations. As it stands, I believe that the expectation would be that the interministerial group would do the heavy lifting in the work around the UK-EU reset and the dynamic alignment around sanitary and phytosanitary measures and the emissions trading system. There are big questions about the extent to which the interministerial group would be able to do that, given the scale of work that is required. Its terms of reference commit the group to meeting three times a year. Given the amount of work that will be required, there are questions about whether another body might be needed to co-ordinate that work.
I will note that we have that three-tier structure with the new 2022 set-up. Some of these discussions, I imagine, will be happening at the Council level as well, given that this is about the UK-EU relationship. I emphasise that the issues relate to capacity on all fronts.
Also, we need to note that this is all happening in the context of upcoming elections in Scotland and Wales, so this has to be attended to, because we are looking at, in Wales, the dissolution of the sixth Senedd on 8 April next year and it is not clear at what point a new Government will be established following the elections in early May. That needs to be brought into the thinking about that piece of work.
Thank you. If no one else wants to come in, that concludes our questions for this morning. I thank you all for your attendance. It has been a very informative session. On that note, we will go into private session. Thank you.
11:13 Meeting continued in private until 11:31.Previous
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