Constitution, Europe, External Affairs and Culture Committee

Meeting date: Thursday, June 9, 2022

Official Report 648KB pdf

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Intergovernmental Relations

Item 3 is intergovernmental relations. This is our third session in a series of meetings that are focused on post-EU constitutional issues. We are joined by Dr Paul Anderson, senior lecturer in international relations and politics, Liverpool John Moores University; Dr Coree Brown Swan, lecturer in comparative politics, Queen’s University Belfast; and Jess Sargeant, senior researcher, Institute for Government. A warm welcome to you all. We are also joined by the committee’s adviser, Professor Michael Keating, emeritus professor of politics, University of Aberdeen, who might contribute during the meeting.

We have four main themes to explore and about an hour in which to do so. If everyone could be concise with their questions and answers, that would be helpful.

10:15  

I will start off by asking about some of the committee’s work on IGR mechanisms following the review by the UK and devolved Governments. We have received a lot of evidence that that process has done little to improve the transparency with regard to the UK internal market and common frameworks. Other devolved Parliaments have also shared that comment, as have other committees. What is your view on that? The UK Parliament is perhaps seen to be paramount in the hierarchy. How can the Scottish Parliament push for more visibility on what is happening at intergovernmental relations at that level? I will call each witness in turn. I can see that Jess Sargeant is smiling at me, so I will go to her first.

The IGR review included measures to try to improve transparency, including producing quarterly and annual reports on all intergovernmental relations. It was intended that the IGR secretariat would publish that, and we have seen a couple of those reports so far. I was a little bit disappointed that they are UK Government branded—they have the logo of the Department for Levelling Up, Housing and Communities on them and the foreword is by Michael Gove. I do not know whether that is just because the IGR secretariat has not been set up yet and whether there will be a move to a format in which reports are jointly published. It would be nice to see that as an agreed measure.

In terms of some of the communiqués that we see come out of various IGR meetings, the top-level forum, the middle-level forum, comprising the interministerial committees, and the lower-level forum, comprising interministerial groups, all produce communiqués and the level of detail in them varies incredibly. Some of the reports have been useful. For example, the report of the interministerial group for environment, food and rural affairs—a quadrilateral meeting of the environment ministers—has been quite helpful. We saw in its report that the forum had agreed to an exclusion to the United Kingdom Internal Market Act 2020 for single reusable plastics. That is useful information to know. However, in other areas, the format of the reports is to set out that X, Y and Z were discussed, with no substance of what went on.

There is a question as to what the main barrier is to providing information. Confidentiality is one of the reasons why we do not see some of the information. Perhaps an underrated reason is that any communiqué must be agreed to before it can be published. I think that, sometimes, there is a risk that people get bogged down arguing about the particular wording of various communiqués, which means that they end up with less detail. That is also a barrier. That is the responsibility of all four Governments—they all have a tendency to object to particular wording, which makes it more difficult to agree to the communiqués. However, the IMG EFRA example shows that we could get to a position in which more information is published, if the four Governments co-operate.

The picture on the transparency of the various intergovernmental meetings is very mixed. I hope that the Governments will be moving towards a position in which more information, rather than less, is published.

There is recognition in the new arrangements that transparency is an important issue and, to some extent, they address some of the main critiques that were levelled at the previous joint ministerial structures, in which transparency was an issue.

It is also important to say that intergovernmental relations across all systems throughout different countries are inherently opaque anyway. As Jess Sargeant has pointed out, that is for good reasons, such as confidentiality. You cannot always reach agreement. At times, meetings take place behind closed doors, so there is an element of needing to maintain confidentiality and transparency becomes more difficult.

Where the new arrangements might signal a change—they signal a change in this direction, at least on paper—is a commitment on the part of the different Governments to engage more with publishing information and, in particular, to engage more with Parliaments in terms of submitting reports, with the onus placed on particular committees in Parliaments to effectively scrutinise what is coming out of the forums.

As Jess Sargeant has said, detail is important. From what I have seen so far, the detail is not what I would expect from the new structures, given what it says on paper about that. That could be due to teething problems or attempts to get into a rhythm in relation to what information we should be teasing out. However, the commitment to increase transparency is important, and the independent secretariat plays an important role in that. One of the main critiques of the previous structures was not only that there was not any transparency and information was not shared in a timely manner but that, even post meetings, information was scarce. For example, there is no place where you can go to get all the information, because different Governments publish it in different places.

There is a commitment to transparency, but the proof of the pudding will be in the eating. We will see whether the Governments continue to commit to publishing information in a timely manner and to sharing that information, as has been agreed, with the public and parliamentary committees.

That centralisation, or having a clearing house or central spot for those details, is very important. We see mechanisms and processes for that elsewhere. Jess Sargeant mentioned the exclusion from the United Kingdom Internal Market Act 2020 for single-use plastics. It took quite a long time after that was agreed for the communiqué on it to come out.

Paul Anderson is right that there is an issue with teething and that this is a new process, so there needs to be engagement and commitment. There are good-faith efforts, so I hope that it will work out over time and we will see the timely publication of communiqués and reports. I am less convinced about the importance of annual reports. It is helpful to have everything consolidated but, for your scrutiny function as a committee, it is difficult to scrutinise and engage with something 12 months after the fact. You have a lot on and your agendas are quite full, and that scrutiny can become more difficult if the information is released only annually.

Please do not take this question as unduly loaded or cynical, but it relates to some of the things that the committee has been looking at. Just on the context, is any dispute mechanism that is designed to fix the problems unduly hampered if the UK can fall back on residual powers simply to legislate in devolved areas to solve a problem that it sees? I do not expect you to solve that issue but, given that there has been a debate about the circumstances in which that can and should be done and about what constitutes normal circumstances, how does that context impinge on this whole discussion?

The issues around Sewel have created an atmosphere in which interaction between the Governments is undergirded by mistrust. The movement in the new arrangements towards dispute resolution is good because it recognises that there is a problem, in that the UK Government should not be judge, jury and executioner in these arrangements, and that the independent secretariat should play an important role. That significantly improves the way in which disputes should be handled. Of course, the issue is whether the devolved Governments believe that that will necessarily lead to more effective relations or a dispute mechanism in which they will have faith.

The UK Government naturally deals with devolution hierarchically, and a unitary mindset still exists in Westminster and Whitehall. On paper at least, the UK Government is saying that it is going to move away from that slightly, but that unitary mindset persists, notwithstanding that we have had two decades of devolution. That will always be an issue, but the important point is that it comes back to trust. The Governments have agreed to move forward on intergovernmental relations and, as Coree Brown Swan said, they should enter into the negotiations in good faith.

It is important to point out that, although the UK is unique in having Sewel, under which the UK Government is still able to legislate in devolved areas, politics is a not-so-harmonious business in many multilevel states. Of course, the UK also has four separate Governments formed by four separate parties, which makes intergovernmental relations complicated but not impossible—it happens elsewhere.

The difference is that you need to enter into negotiations with a willingness to compromise and work out problems and at times—certainly in recent years, since Brexit—that has not been the case with legislation, particularly on the part of the United Kingdom Government, where the onus has been to set the benchmarks a bit higher than they have been set in the past.

It is not impossible to resolve these disputes. There are, of course, still issues around financial disputes, which are the most important ones as far as devolved Governments are concerned, and the most frequent. However, there has been a step in the right direction, although the proof of the pudding will be in the eating and whether that step works.

I go back to Paul Anderson’s point about trust. What we have seen during the past 20 years of devolution is the disuse of intergovernmental processes, and it is hard to trust people who you do not know or do not see. There is a contentious and partisan dynamic at play, and again, that is not unique to the United Kingdom. Perhaps a more formal and routine system of intergovernmental relations in which people meet each other, build relationships, and learn how to trust each other would be a positive step forward. Can that overcome the inherent power imbalances in the UK? No, it cannot fix that system, but I hope that it can allow for more productive working relationships. Every time you see an agreement or a positive negotiation in process, that is a positive step and it can build over time.

I agree with Paul Anderson that the dispute resolution mechanism is an improvement on what was there before. The problem that you are speaking to is a fundamental problem of the UK constitution in that it has no strict rules. Parliamentary sovereignty with a majority in Westminster is able to change legislation that can alter the constitution.

Traditionally, the UK constitution has operated quite well as a political constitution on the assumption that all actors will act rationally. One of the reasons why the Sewel convention worked so well before the Brexit period is that the threat of consent being withheld was enough to extract concessions when the UK Government and the devolved Administrations were in discussions. That appears to have broken down and I guess that there are two options for doing something about it. One is to restore that traditional sense of political constitutionalism, to ensure that there are those negotiations and concessions, and that give and take that makes the constitution function, but inevitably some people are also thinking about the possibility of a different system in which rights are more entrenched. That would require some kind of codified constitution because, even if you codify elements of the devolution arrangements such as the Sewel convention, they can still be overruled by parliamentary majority.

That is something that people are looking at now, including the Welsh Government and the Labour Party, but it would be quite a radical change, so there is a question over whether there would be the political will to overhaul the whole of the UK’s constitutional system.

My next question might also be a loaded one. You have pointed to history and said that, in the past, people at the UK level would not want to have been seen not to care about the view of devolved legislatures, so how do we cope with it when they do not?

That is a difficult question, and I do not think that there are any easy answers. It requires a change in culture and approach, and it is difficult to encourage anyone to do that, other than by just saying that that is the way to approach it. There are no mechanisms that we can use to force people to think in a certain way.

The Brexit process created particular dynamics, which lent themselves to the slightly adversarial approach—I say “slightly”, but it was quite adversarial—between the UK Government and the devolved Administrations. The fact that there was a referendum complicated the picture.

There is now an opportunity to return to more normal working. I hope that some of the disputes relating to the Sewel convention that there were during the Brexit period might be avoided in future and that we can return to a system in which there are behind-the-scenes negotiations and discussions on legislation. There is no easy answer to how you encourage people to work together. That applies to all the Governments, because the risk is that, at times, there is an incentive for the devolved Administrations to object, because that can be quite helpful for them politically. All sides need to come back together to try to fix the situation.

10:30  

I want to ask about international comparators, which all the witnesses have spoken or written about. There are the federal or quasi-federal European systems through to the systems that are used in Australia, India and Canada. What are the witnesses’ observations on those systems? Does any of them provide an IGR model for Scotland?

We have done a significant amount of comparative work. We have looked at formal federations and quasi-federations. In 2015, when I talked to your colleagues about scrutiny and transparency in relation to intergovernmental relations, someone asked me whether there is a system in which intergovernmental relations work well. Intergovernmental relations are always very difficult, because there are partisan disputes about power and many other issues. However, some countries use more co-operative systems in which there is buy-in and faith that people are working together.

In Canada, there is significant formalisation of the system of intergovernmental relations, which is supported by a secretariat that brings people together regularly. There is a formal mechanism for dispute resolution, and the provinces feel that they have an important voice when it comes to the management of internal markets. Therefore, there are examples of intergovernmental relations working.

In Spain, there are sectoral conferences. Given the dispute over Catalonia, intergovernmental relations at the executive level are very difficult, but sectoral conferences take place regularly, bringing together ministers and civil servants on issues that are outside the domain of the constitutional debate.

Among such models, there are cases in which the constitutional dynamics are similar to those of the UK. There are contentious debates about the constitutional future of each state, but some issues can be put aside at sectoral and ministerial levels in order for there to be co-operation on key issues, such as the economy and the Covid response.

There is no perfect model or blueprint for Scotland and the rest of the UK, but we can look at whether we can borrow approaches from other states where things work better.

I will be brief, because Paul Anderson and Coree Brown Swan have done a lot more detailed research on international examples, and my point might be less helpful than what they will say. However, I want to point out the unusual nature of the UK’s constitution. One of the barriers to adopting systems that are used elsewhere is the UK Government’s dual role as the Government of the UK and the Government of England. That complicated dual role makes it very difficult for the UK Government to make decisions for the whole of the UK on a neutral basis and to act as a convener or as a central part for the other member states.

I give a note of caution about borrowing too many examples from other places. As I said, that point is not necessarily helpful, but there are things that make it more difficult to implement such systems.

Dr Anderson has also made that point.

Yes. I echo what Coree Brown Swan said. There is no perfect model of intergovernmental relations, as they are conditioned by political context and culture. You can have the most perfect structure, but that does not mean that intergovernmental relations or interactions will work.

I will pick up on what Coree said about Canada. In the new arrangements, you can clearly see that lessons have been taken from elsewhere. The sectoral conferences in Spain work well, notwithstanding interregional issues, particularly around Catalonia and secessionism. Those conferences happen and agreements are made, and there is clear commitment on behalf of most Governments.

It might be more difficult in the UK, because the UK has three devolved Governments and the UK Government has a double role. In Canada, there are 10 provinces and in Spain, there are 17 autonomous communities. Where intergovernmental relations work really well, the big difference is the federal way of thinking. In countries such as Switzerland, Canada and Germany, where the second chamber is a federal representative second chamber, a culture of compromise and co-operation is built into the arrangements.

The UK will probably never become a fully fledged self-identified federation, although it has been moving in that direction over the past two decades, but lessons can be learned from those other countries about how political culture can inform relations. That is sometimes more important than having the perfect structure.

The other thing to remember is that intergovernmental relations are also effective when they happen informally. I found that in my research, when I spoke to ministers in this Parliament and elsewhere. They said, “We go to these meetings, which can be contentious, difficult and not harmonious, but I can phone the minister in Westminster because I know who they are, and I have their mobile number. We deal with things informally.” Civil servants play an important role in that as well.

Formal structures are good. They are a step in the right direction and they are needed, but they are not necessarily required to have the most effective relations. That is the case in all multilevel systems.

My final question is about internal market comparators, because the internal market has been at the forefront of minds recently. I was struck by something that Dr Coree Brown Swan wrote in her submission about the comparison between Australia and Canada. She said:

“There are two modes of thinking about the internal market in these two states—in Australia, there is comparatively minimal state level resistance to processes of harmonisation, whilst in Canada, barriers to trade are, to a degree, considered an acceptable cost to maintain provincial autonomy.”

Do you want to develop that?

Current work is looking at finding lessons for the UK internal market from how those very developed federations, which have a Westminster-style system, have managed their internal markets.

In Australia, there is a significant power imbalance, because the federal Government—the Commonwealth—has all the money. Because the vertical fiscal imbalance is so extreme in Australia and the centre holds the purse strings, states often go along with things. That is very different from Scotland.

There is also a political culture aspect as well. In interviews with people in Australia, they repeatedly said, “We need to tidy up the federation. It doesn’t make sense that there is this policy diversion. We need to have things the same throughout.” There is not a lot of tolerance for policy diversions.

The situation is very different in Canada, especially in provinces that have distinct political and national identities, where there is a sense that people will accept some barriers to the internal market in comparison to other federal states. The Canadian internal market is very fragmented, but that is expected, because provincial autonomy is very important. The ability of the federal Government to intervene to harmonise or reduce barriers to trade is much more limited.

The Canadian free trade agreement to reduce barriers to trade was brought about at the impetus of the provinces themselves. They agreed to the general baseline for the agreement, then brought in the federal Government. I do not know whether that has worked, but the agreement has very clear regulation practices and practices for reconciliation, in order to reduce barriers to trade and so that things can be agreed to between the provinces.

Those are very formalised structures with a fragmented internal market but, politically and culturally, that is accepted and considered to be a worthwhile compromise.

I was struck by the comments about sectoral conferences, and I note that Belgium has ministerial conferences. I am interested in that sort of wider conversation; I am not suggesting that we dilute the role of politicians and ministers, but a lot of the legislation that we deal with comes in the form of statutory instruments, which are very technical and are perhaps more for discussion between Government agencies and stakeholders, with agreements made before the legislation is introduced and gets near politicians. How does a wider approach or conversation that has politicians in the mix but which also involves civil servants, agencies and others work, and do we have it in the UK and across these islands?

Jess, do you want to go first?

A lot of work goes on at official and public body level between the four nations. For example, in some of the areas that are covered by common frameworks, there is the work of the Food Standards Agency, which works closely with Food Standards Scotland, and the work of the Health and Safety Executive, which is responsible for a lot of chemical regulation. When you speak to a lot of these regulators, you find that they do not really think that the potential for regulatory divergence is that much of a problem. Sometimes, they have regulation-making powers, and they also make recommendations to ministers in all four nations on the basis of the evidence, which is actually very similar in each part of the UK. There might be different circumstances in different parts of the UK, but it is not as if the economies are wildly different or the circumstances are so different that they necessitate having different food standards and so on.

Interestingly, a lot of those bodies were established before devolution and were therefore not necessarily set up to serve four Governments. Different regulators take very different approaches to the matter; some of them have formal representation from the four nations on their boards, while others have what are known as service level agreements, which are much more informal. Actually, the HSE has such agreements, under which it will agree with, say, the Scottish Government that it will advise on this or that little bit instead of looking at the whole picture.

Particularly post-Brexit, with some of the functions returning to the UK from the EU, we might need to think a little bit more about how that system works generally and whether with organisations such as the Competition and Markets Authority, which now has responsibility for subsidy control across the whole of the UK—and which houses the office of the internal market, which will advise on a lot of instances of regulatory divergence—more will need to be done to ensure that things happen on a four-nation basis.

A lot of stuff does go on behind the scenes, and that approach works quite well. Indeed, that is perhaps why we hear less about it. That said, the approach is a bit more piecemeal than it might be in other countries.

Coree, do you want to say something more about the sectoral conferences? For example, I am aware that various sectors were very much involved with the EU-Canada comprehensive economic and trade agreement—including our own Scotch Whisky Association, which managed to carve some concessions out of it. Who knew?

Other federal states such as Spain, Belgium and Canada have sectoral conferences, which are often driven by the priorities of ministers and the Government as set out on an annual or perhaps biannual basis but are largely driven by civil servants with input from civil society, industry associations and so on. In Spain, upwards of 20 meet throughout the year. Some meet very frequently, either because they deal with matters that require people to be brought together to co-ordinate things or ahead of an agreement, when there is a greater degree or intensity of co-ordination, whereas others meet less frequently, because there is not so much of a need for co-operation. Sports ministers, for example, do not really need to co-operate that much, but economy ministers do.

Such sectoral intergovernmental relations often work quite well both in forming co-operation agreements on certain areas, whether they be bilateral or multilateral, and for information sharing and policy learning. That co-ordination and those relationships tend to be quite important.

In Spain, they are very formalised. They have formal agreements and processes for decision making and voting. There is an emphasis on securing a consensus—that is the priority—but in the event that a consensus cannot be secured, there are formal decision-making processes. Again, the issue of the Government representing multiple entities or having the dual-hatted role involving England is not present in Spain. Belgium is always complicated, with its regional and community component, but there is a similar process there.

10:45  

We should not underestimate the work of civil servants in keeping intergovernmental relations going. At times, intergovernmental relations are the glue that keeps states together, but they are also the oil that keeps things going. Even throughout the past five years of difficult intergovernmental relations in the media and public, they happen behind the scenes because civil servants are there to keep things going.

It is common practice across different states to bring in other agencies, particularly to take advantage of the niche expertise that those agencies have that Governments might not have. With no offence meant to politicians in the room, I do not think that intergovernmental relations are the top priority when people come into politics or want to be elected. You therefore have to rely on that niche expertise.

That is not to underestimate the fact that devolved Governments also have niche expertise. The joint ministerial committee on Europe worked very well because the devolved Governments were able to bring in niche expertise in agriculture and other areas that was not necessarily shared in the UK Government.

On the final point about sectoral conferences, intergovernmental relations are about interaction, co-operation and collaboration but, as Coree Brown Swan said, they are also about opportunities to learn from each other. It is about sharing information and best practice, and we see that happening in the UK, where things have been introduced by the Scottish Parliament that have been rolled out elsewhere, such as the smoking ban and so on. As you can see, there are opportunities for policy learning, and sectoral conferences also offer an important lesson.

They also work at the horizontal level, which is Governments working together without the involvement of the central Government. Typically, that happens in Spain for all the reasons that I mentioned about policy learning and so on, and so that the devolved Governments can coalesce around a particular position to challenge the central Government. Coree Brown Swan mentioned the provincial Governments in Canada, and horizontal relations in Canada predate vertical relations with the federal Government, so it is easier for those Governments to come together and take a position on trade, for example, and then go to the federal Government. The UK is hampered by the fact that there are only three devolved Governments, and England does not have a devolved Government, although there are potentially devolved leaders in metro mayors and so on.

Sectoral conferences are not just about facilitating co-operation, although that is important; other things can be learned from Governments, Parliaments, civil servants, and the niche expertise of individual agencies and other organisations.

I have a quick supplementary question about the stage that we are at, the changes after Brexit and building new systems. The Deputy Convener and I attended the Parliamentary Partnership Assembly in Brussels as observers. There is a meeting of ministers and the UK Government before that, but with the delegation made up solely of Westminster members of Parliament and members of the House of Lords, representatives of the devolved Parliaments attended as observers. No one was there from the Seanad because of Ireland’s electoral cycle. The Northern Ireland protocol absolutely dominated the two days of proceedings.

Is there a similar situation elsewhere to that of the PPA in which parliamentary or federal arrangements are not mirrored? At the pre-meeting between the UK Government and ministers, there was no way for us to contribute to or be involved in the discussions as devolved nations. How does that work in other areas?

I will try to answer that. Potentially, one of the things that needs to be explored more in the UK is, as you have hinted at, the area of interparliamentary relations. Interparliamentary relations in the UK have been ad hoc. Similarly to what I was saying about sectoral conferences, there are opportunities to bring together Parliaments to share best practice and learn about processes within them, such as committee scrutiny.

There are interparliamentary relations in other systems. They are normally not as formalised as intergovernmental relations but they exist. That could help with what Coree Brown Swan was speaking about at the beginning—that is, bringing people together and building trust so that people work together.

One of the issues around intergovernmental relations in lots of systems is the difference between being listened to and being heard. In the case of the UK, that is about ensuring that the devolved Governments have a voice. That was not the case in the joint ministerial structures—with, potentially, the exception of the joint ministerial committee on Europe, which the devolved Governments attended and could input at pre-meets. There were certain caveats and limitations, but those structures worked more effectively because the devolved Governments were much more involved in them than they were in other structures.

I think that that is the case in other federal countries, including in quasi-federal countries such as Spain, where central Government still tends to have a key role at the apex of intergovernmental structures. That is not a great thing; it is not a good idea to have that centralised control. It is obvious why that exists, but it can taint relations.

I do not think that the UK is necessarily an outlier in relation to bringing Governments together. It comes back to the point about building trust and relations, and providing opportunities to share things—that might not necessarily be in the form of pre-meets, but there at least needs to be discussion. It is about Governments feeling that what they are saying is being listened to and being actioned or critiqued, with policy or agreements then being formulated on the back of that, as opposed to them grandstanding or what they are saying being interpreted as grandstanding. It is not an easy, linear process. It is not like that in any intergovernmental relations structure in other countries.

I would definitely agree that the pre-meet is the key thing for us in that we do not have an opportunity to feed into that delegation before it meets.

I, too, thank you for the submissions that we received in advance. It has given us a bit of depth when looking at the alternatives.

To broaden out the discussion about interparliamentary work, we briefly heard from Dr Anderson about horizontal relationships, which are not factored in or formalised, the scope for doing that in the UK and for learning from other countries. I am thinking about the horizontal relations between the UK Government and the devolved Governments and between those Governments and local government, so it is about acknowledging that multitier set of relationships.

To kick off, can you say a bit more about where we are on that, Dr Anderson? We have met the Public Administration and Constitutional Affairs Committee—the UK Parliament’s constitutional affairs team—and we have met the House of Lords team that is looking at constitutional change, and it feels as though there is an appetite for change. The issue is thinking through what priorities to push in terms of interparliamentary and intergovernmental relations, so that you do not miss out that potential radical change that could solve some of the challenges.

Interparliamentary relations are not as interesting as intergovernmental relations because the same tensions do not necessarily pop up—you will not find a meeting between Scottish Parliament and Westminster committees making front-page news. However, interparliamentary relations are important, particularly given that we have had devolution for two decades. We have Parliaments in Wales and in Scotland and the Assembly in Northern Ireland. Lessons can be learned from all three of them. In Wales, changes are currently being mooted around electoral systems and how to move forward. That is a sort of coming of age after two decades, and is about taking stock of where we are. That it is a good thing.

Over the past few years, committees in the Scottish Parliament have worked with committees in Westminster. That works, and it is a good thing. Given the interdependencies and overlapping competences that now exist in the UK post-Brexit, there needs to be more interaction between Governments. However, that does not mean that parliamentary committees cannot work together to seek to address the issues. They could coalesce around a particular issue to force Governments to interact.

For example, there seems to be consensus in the different Parliaments on how to address the issues that Jess Sargeant raised at the beginning about the Sewel convention. That is certainly the case with committees in the House of Lords, the House of Commons, the Welsh Parliament and the Scottish Parliament, so why not bring those committees together in a forum and take a position to try to perhaps not force change but encourage debate and conversation?

On local government, there is a contentious issue about the shared prosperity fund, how the money will be spent and whether the devolved Governments will be involved in those conversations or cut out of them. It is not normal to have central Government and local government co-operating in intergovernmental relations, but why not bring local government into some of those conversations to work better with the devolved Governments? Having local government and devolved Governments work together is clearly a good thing. If the UK Government is involved in those conversations, that is fine, although that is with the caveat that local government is very different elsewhere.

I have one final point. One weakness of the new arrangements is to do with the elephant in the room, which is England and the fact that the UK Government has a double role as the UK Government and the English Government. I think that England potentially loses out a bit from that. There are nine metro mayors with significant policy responsibilities and, during the pandemic, some of them took on big roles and stood up to central Government when they were unhappy. Why does the Scottish Parliament or the Scottish Government not work with some of those institutions? Some exciting things are happening on transport in Liverpool and Manchester, so there could be lessons to be learned for the Parliaments and they could work together.

Horizontal relations could potentially address the imbalance and help England to gain a different voice from the UK Government, although the priorities are, of course, very different. There would also be an opportunity to learn and share policy ideas and so on.

It is good to get on the record those points about change that could make a big difference. On your point about transport, lessons could also be learned from the work that has been done on transport in Glasgow and Strathclyde.

I have a follow-up question for Coree Brown Swan about that issue of different levels and relationships. You talked interestingly about relationships and agreements in Canada and the cross-border and intergovernmental work that is done there. Will you say a little more about that? That could be a way of strengthening the impact that we could make. I am thinking about intergovernmental work, but I am also focusing on interparliamentary work. Do you agree that there is a potential role for, say, the metro mayors to change the dynamic at the centre so that it stops thinking about running things and acknowledges multilevel Parliaments and Governments?

It is important to bring those voices into intergovernmental forums. We see that in Canada and Spain, where mayors, city councils or major urban areas have representation in the sectoral conferences. That is often helpful when the work impinges on their areas of responsibility. However, I wonder whether, in a formalised system of intergovernmental relations, the Welsh and Scottish Governments and the Northern Ireland Executive would be keen on being at the same level as the metro mayors, because there are some sensitivities in that. There is also the perpetual issue about the UK’s constitutional future, whether to carve up England into a federation and how that would work. No one has ever come up with a concrete answer to that.

The more voices that you have in the room, the better, particularly for policy learning, sharing, co-operation and co-ordination. That makes decision making more complicated, but we know that the forums for intergovernmental relations are not always decision-making forums—they are not forums that need to have a vote. Co-ordination is important at the interparliamentary level. We see less co-ordination within federal states, but there are committees in European member states that scrutinise European legislation, particularly on security and defence, so perhaps there are lessons to be learned in that regard.

11:00  

It feels a bit silly to say that everybody needs to talk more, but they do, because that is how you gain ideas, co-operate and build trust so that, when it comes time to take the big, difficult and sensitive decisions, you are doing so from a place of trust. The constitutional elephant in the room will always be there, and there will always be partisan dynamics. However, it is helpful to be able to speak to issues, such as how to respond to an economic issue, how to improve transport and how to improve connectivity, from a position of trust in pre-existing relationships.

On one level, civil servants have longevity—they might be there longer than the politicians—but on another level, ministers get reshuffled and the composition of Parliaments change. Parliaments have greater stability through committees, as well as through cross-party links. It is interesting to consider how to make that work going forward.

Dr Brown Swan, you made some comments about the memorandums of understanding. Will you say a bit about how those have worked? We had not had them for that long before Covid came along. Are there any lessons from the past couple of years about what we need to accelerate to make them work better?

The MOUs that were agreed between the Scottish Parliament and the Scottish Government to increase transparency and notify committees about relationships between Governments and when meetings take place have worked to a degree. That has been consistently achieved, and you can see that in the publication of the communiqués that have been mentioned, although they are often not very detailed. To come back to Jess Sargeant’s initial point, the more detailed those can be, the more helpful they are for broader transparency and for researchers who work on intergovernmental relations. They give us a sense of what is going on, which you need if you are to ask the right questions, figure out who to call as witnesses and tease out more data. There is always a question of confidentiality and whether things are sensitive but more detailed communiqués and outputs are always helpful.

Jess Sargeant, do you want to come in on interparliamentary work and how to make it work better?

Yes. I agree with a lot of what Dr Anderson and Dr Brown Swan have said. One key aspect to interparliamentary working is through the committee system, so I am pleased to hear about the work that this committee has been doing. We need to make sure that it is not just the reserve of people who explicitly look at intergovernmental relations and that it feeds through regular policy issues.

We set out some proposals for interparliamentary working in our report on the UK internal market. I am attracted to the idea of a chairs forum that mirrors the interministerial groups that will be set up. That model was used with the chairs of the Europe committees, when the JMC on Europe still existed. That would be helpful for information sharing and flagging potential instances of regulatory divergence.

I know that the committee has been considering the issue of scrutiny of common frameworks and regulatory divergence, and the Scottish Government’s response to one of our recommendations is that the committee will have the opportunity to scrutinise any piece of legislation that might be part of a common framework. That is certainly true, but this committee would not necessarily have the opportunity to scrutinise a piece of legislation that is going through another Parliament, and vice versa.

The chairs forum could be useful for allowing people—without having to wait for the Governments to tell them that they have made an agreement and that something is happening—to recognise where there has been an agreement, to flag issues that are coming down the pipeline and, potentially, to make joint reports.

Fundamentally, the best way of influencing intergovernmental discussions and decisions is through interparliamentary working. If negotiations are held in the intergovernmental sector, once those have been concluded and the Governments have presented the conclusions to their Parliaments, they are very unlikely to want to go back and change those, because that would mean reopening the negotiations. However, if there is a specific issue that all the committees or all the Parliaments flag as a particular problem, which they all commonly feel that their Governments need to address, that puts a lot more pressure on those Governments, which creates the potential to extract changes. Scrutiny for scrutiny’s sake is very important but, fundamentally, the issue is what impact that could have.

I think that we agree with that. [Laughter.] Whether we are talking about environmental and rural issues, economic issues or trade issues, we cannot be experts on all those areas. The question is how issues in those areas are flagged so that we achieve effective cross-parliamentary working. That is really important.

Dr Allan has to leave us. Would you like to come in quickly before you do?

No, thank you—I am afraid that I must leave.

Dr Anderson, you said earlier that civil servants are the glue that keeps things going when it comes to IGR, which I am sure will have struck a chord with everyone in the room because, as has been mentioned, politicians move on.

This is the third parliamentary session in which I have been on a committee that has discussed IGR. I was a member of the Devolution (Further Powers) Committee way back in session 4, so it is a case of groundhog day, to say the least.

Looking through the submissions and the material in our papers, I was struck by the comments of Professor Nicola McEwen, who said:

“parliamentary committees in every UK legislature have called for greater transparency and greater oversight of IGR, not least in light of its increased importance in the context of both Brexit and Covid.”

She went on to say, with regard to the IGR review:

“there is no reference to parliamentary oversight or a requirement to engage the parliaments.”

Do you agree with Professor McEwen? Do you have any other thoughts?

I think that that is true. As we look at formalising intergovernmental relations, specific opportunities need to be provided for parliamentary scrutiny and oversight to take place. In other places, committees have been specifically charged with the task of examining intergovernmental relations. In the National Assembly of Québec, there is a committee that has the remit of looking at intergovernmental relations. I do not know whether that is necessary. It might be better for individual committees, such as the environment committee or the health committee, to engage in those scrutiny functions.

However, there is an opportunity and a need for that scrutiny and oversight to take place, not just in the Scottish Parliament but across the UK. It seems to be a bit of an oversight that such scrutiny is not already carried out, but we can perhaps understand the motivation behind that—there is an element of not wanting to tell Parliaments how to do their job. It is up to each individual Parliament to decide how it wants to exercise that scrutiny function, but it is crucially important.

It is fair to say that the population tell us how we should do our job all the time, so you do not need to be shy about it.

I certainly think that it is important for there to be scrutiny of intergovernmental discussions, but I think that one of the challenges is to do with the appetite of parliamentarians—especially in the UK Parliament—to carry out such scrutiny, particularly when it comes to scrutiny of IGR in the abstract. Although the House of Lords has done a very good job of scrutinising common frameworks, there has been very little engagement from the Commons. Many MPs do not think that such a highly technical and complex thing that has these little dispute resolution procedures is what they should be spending their time on, compared with being with constituents or working on policy issues.

However, there is a lot of potential for better scrutiny of intergovernmental relations on specific policy issues. In order for that scrutiny to take place, all Governments need to empower Parliaments to consider the IGR aspects of various policy proposals. That could be done through including information in explanatory notes about the intergovernmental discussions that have taken place. It could be done through discussion of the broader regulatory context, including what other Governments are doing, or by considering the resources that are given to parliamentarians when they are asked to look at legislation or policies.

Another great resource could be the office for the internal market, which can, at the request of Governments, look at the implications of a particular policy either before it is in place or afterwards. We have to rely on Governments, as the trigger, to ask for that advice, and parliamentarians should encourage Governments to use that option so that there is thorough economic and regulatory analysis.

Rather than just giving the role and saying, “You need to do this,” parliamentarians should push Governments to think about what resources and information they need to be able to carry out the role effectively. Rather than giving people another thing to think about at their committee meetings, we should consider how the process can be meaningful, how it can make changes and how it relates to decisions that are made or policies that are taken forward.

On the point about civil servants, I am not saying that they do not do a great job, but a big problem in Whitehall is that they move on pretty quickly. Although civil servants in the devolved Parliaments understand devolution, that is not always the case with civil servants in Whitehall. That might be why there are so many misunderstandings about what the devolved Parliaments do—we saw that clearly during Covid. When civil servants change, they have to be educated or re-educated on what the devolved Parliaments do. Civil servants are important, but there needs to be a lot more education for them, particularly those in Whitehall, on devolved Governments.

I agree with what Professor McEwen said about parliamentary oversight. It is not surprising that there are not comments on parliamentary oversight, because of what Coree Brown Swan said and because the different Governments interact with Parliaments in different ways. The onus is on the devolved Governments to engage with Parliaments, to agree the terms for sharing information and to ensure that Parliaments have a scrutiny and oversight function. Why do the devolved Parliaments not come together horizontally to discuss how to do that? Could the devolved Parliaments, between them, learn how to do that?

The memorandum of understanding between the Parliament and the Government represents good practice, although it might need to be updated in the light of the new arrangements, because I do not think that an annual report is enough. As Coree Brown Swan said, that annual report is examined 12 months after the relations, so that should potentially be changed to a quarterly report. That is important, because ministers who engage in intergovernmental relations would expect to be held to account by committees and would know that sharing information was important. That could be done in a positive, not a negative, way—committees could ask ministers to engage with them and share the information.

It is important to find the balance, because too much transparency might lead to ministers sending stock answers in response to requests. If a report needed to be submitted after every intergovernmental meeting, that report might be copied and pasted from the previous report, with a few words changed. We need to find the balance between creating the expectation that Governments will be held to account and scrutinised by Parliaments in relation to intergovernmental relations and not creating an extra layer of bureaucracy and work that puts off ministers engaging properly with interparliamentary structures.

Notwithstanding the points that have been raised regarding civil servants, it is fair to say that anything that happens from now on will certainly be an improvement, because the previous IGR process was not fit for purpose in any way, shape or form. It was very much a failure.

I welcome the fact that progress has been made on the new process, which is no longer ad hoc, but there is no statutory provision for it—it seems to be somewhere in between. Should the process be on a statutory footing?

11:15  

I am neither convinced nor unconvinced by the statutory footing. I think that the Sewel convention shows some of the distrust surrounding what it would mean to place intergovernmental relations on a statutory footing. One of the things that UK politics did well, until Brexit, was to keep things out of the courts and to try and deal with things politically. That is not the case, for example, in Spain, where there is a politicisation of the judiciary and a judicialisation of politics. I would be keen to avoid that in the UK.

Statutory footing has a symbolic importance. It is there to say that intergovernmental relations are important and that they should take place but, if we look at other federal or devolved systems, the most important intergovernmental mechanism is normally not grounded in a statutory footing. I noted in my briefing paper that India is an exception to that. In Spain, there is a more legal framework for intergovernmental relations, as well as a legal requirement that information is published and shared, but that does not necessarily mean that there will be effective relations. After the 2017 referendum, the Catalan Government did not want to engage in multilateral relations with the Spanish Government. If there is a legal provision saying that we have to do it, what is the punishment for not doing so? I can understand why the statutory footing is there, and I think that there is an important symbolic issue around it, but it does not mean that there will be effective intergovernmental relations.

We are very quickly running out of time. We have only about five minutes left, so I will allow other witnesses to answer Stuart McMillan’s question, but I ask you to limit it not to one word but to one sentence.

Absolutely; I agree with Paul. We cannot return to a situation in which bodies such as the JMC just are not meeting, because that is completely unacceptable. Fundamentally, it needs political will from all four Governments to continue to meet, and that is not an easy thing to fabricate. I certainly hope that, after this review, there will be renewed impetus on those structures.

Statutory requirements are symbolically important but, as Jess Sargeant said, it returns to political will.

In the interests of time, I will bundle my questions into one, so it will probably be in two parts.

First, we have discussed changing the culture. I used to work at the Murray-Darling Basin Commission in Australia. It was a tricky process of attempting to manage finite water resources between competing states and, indeed, competing actors within states. I want to explore your thoughts. We have also mentioned a sectoral conference or other body to look at a specific issue. Even with that, are the structures sufficient for when it is in political interests for intergovernmental relations not to work very well? Secondly, beyond the sectoral conferences, where sharing best practice on specific issues is a really good idea and would be welcomed—Wales has done fantastically on recycling, so that model could be rolled out in Scotland, although it would be more challenging in England—is there something beyond sharing best practice within those structures?

Beyond information sharing, intergovernmental relations work quite well when there is a specific project or need. In Canada, we see regional co-operation on environmental issues, such as pipelines and renewables. When you bring Governments together to work on a specific project that is in their shared interest and has cross-border implications, that is an important opportunity for intergovernmental relations. That takes it beyond the information sharing function and builds a record of trust, co-operation and collaboration. In Canada, we see quite a bit of specific co-ordination, particularly on the environment, which is, of course, a cross-cutting issue.

There is potential for all four Governments to see the benefit of IGR on policy issues where they have a shared interest, such as climate change or food standards. That is happening. One of the post-Brexit freedoms that the UK Government mentioned in its paper was new action to prevent puppy smuggling. That is being implemented Great Britain-wide with the agreement of all the Governments even though it is a devolved matter. Similarly, adding folic acid to bread was recently agreed between the four Governments, because it was understood that implementing it in Scotland alone would not be effective as supply chains are UK-wide.

Those things are happening. The problem is that, sometimes, the big constitutional issues get in the way. Although Brexit is somewhat behind us, which will help to some extent, there will be a tough time ahead with the potential for a second independence referendum and continuing disagreement on the Northern Ireland protocol. It will be challenging but I hope that setting up the new interministerial groups will allow ministers to continue those discussions at a policy level even when high-level politics might be a bit more difficult.

Political culture is the main issue with getting more effective intergovernmental relations in the UK. Unlike federal states where there is a political culture of compromise and negotiation, that has not been the experience of intergovernmental relations in the UK since 1999. In the UK, a lot of the onus is sometimes on the devolved Governments, which perhaps have a different constitutional vision and, therefore, it could be said that they do not want it to work. However, it is in the interest of all Governments at least to co-operate.

At the same time, it is clear that UK Government ministers have attended intergovernmental meetings in the past because they were told to. There was debate about whether the Prime Minister should chair the main committee in the new arrangements. There seemed to be reticence about whether that would be the case, but of course the Prime Minister should be involved in such meetings.

The issue is the political culture about whether Westminster, as well as the devolved Governments, thinks that intergovernmental relations are important. It is also the need to build up the political culture of trust, good-faith negotiations and willingness to come together and work on common issues. If intergovernmental relations are going to improve, there needs to be a change in the mindset with which Governments approach them. On paper, there is. Whether it happens at a practical level remains to be seen.

It is important to say what the mood music was when the arrangements were published. Michael Gove said that they would be great and would revolutionise relations, but those were not the words of any of the representatives from Stormont, the Welsh Government, the Scottish Government or the Northern Ireland Executive. They were much more cautious and said, “We will see.”

Political culture is the main issue. It should and will have to change if intergovernmental relations are to improve and become more effective.

I am afraid that we will have to call it a day on this agenda item. I thank all the witnesses for attending. It has been an interesting evidence session.

I close the public part of the meeting. We have a further agenda item in private, so I ask people who are not staying in the room for that to exit as quickly as possible. I am sorry to do that, but it is because of parliamentary timetables on a Thursday.

11:23 Meeting continued in private until 11:33.