8th Report, 2015 (Session 4): Changing Relationships: Parliamentary Scrutiny of Intergovernmental Relations

SP Paper 809 (Web)

Contents

Report
Remit

Introduction
Executive Summary

Current formal structures of IGR in the UK – an overview

Views on the current arrangements

Impact of the proposals for further devolution on IGR

Recommendations of the Smith Commission
The Committee ’s perspective
Views of the two governments on IGR

Parliamentary scrutiny of IGR in other jurisdictions
Making IGR more transparent

A statutory basis for Parliamentary scrutiny?
Provision of information to Parliament to enable effective scrutiny

Role of the Scottish Parliament
Progress of the Scotland Bill
Conclusions and recommendations

Guiding principles
A statutory underpinning
Information provision
Reforming the structure of the Scottish Parliament to make scrutiny of IGR more effective
Revising the arrangements for IGR in the UK

Annexe A - Scottish Government summary of the evolution of the Memorandum of Understanding (MoU)
Annexe B - External research report
Annexe C – Extracts from the minutes of the meetings of the Committee and links to the Official Reports

Remit and membership

Remit:

To consider matters relating to The Scotland Act 1998 (Modification of Schedule 5) Order 2013, the Scottish Independence Referendum Act 2013, its implementation and any associated legislation. Furthermore, (i) until the end of November 2014 or when the final report of the Scotland Devolution Commission has been published, to facilitate engagement of stakeholders with the Scotland Devolution Commission and to engage in an agreed programme of work with the Commission as it develops its proposals; and (ii) thereafter, to consider the work of the Scotland Devolution Commission, the proposals it makes for further devolution to the Scottish Parliament, other such proposals for further devolution and any legislation to implement such proposals that may be introduced in the UK Parliament or Scottish Parliament after the Commission has published its final report.

Membership:

Bruce Crawford (Convener)
Duncan McNeil (Deputy Convener)
Malcolm Chisholm
Linda Fabiani
Rob Gibson
Alex Johnstone
Alison Johnstone
Stewart Maxwell
Mark McDonald
Stuart McMillan
Tavish Scott

Changing Relationships: Parliamentary Scrutiny of Intergovernmental Relations

Introduction

1. Inter-governmental relations (IGR) refer to the processes by which different governments seek to communicate and cooperate to address issues where their policy responsibilities overlap, where there are common policy challenges, and to prevent or resolve areas of dispute. As the Committee has noted previously, in its Interim Report ‘New Powers for Scotland’, inter-governmental relations in the UK are mainly informal and underpinned by the need for good communication, goodwill and mutual trust. Nevertheless, the focus of this report is on the formal structures and processes which currently govern IGR in the UK and the implications of the current proposals for further devolution may have upon these structures and relationships.

2. In particular, this report considers the role of the Scottish Parliament, as well as Parliaments more generally, in scrutinising intergovernmental relations. In doing so, the report considers the practices in parliamentary scrutiny of IGR in other jurisdictions in order to seek examples and experiences which may help inform the on-going evolution of UK IGR and the role of legislatures in overseeing it.

Executive Summary

3. The formal structures of inter-governmental relations between the UK Government and the devolved administrations have undergone a process of evolution and expansion since 1999. However, the operation of these structures has been subject to considerable criticism. Lord Smith in his foreword to the Smith Commission report emphasised the need for a more productive, robust, visible and transparent set of relationships. The recommendations of the Smith Commission could result in a greater degree of devolved and shared powers between the Scottish and UK Governments that will increase the importance of, and necessity for, inter-governmental relations within the UK. As a result, the Smith Commission recommended the development of a new Memorandum of Understanding between the UK Government and the devolved administrations.

4. The process of agreeing a new Memorandum of Understanding is currently underway. The Devolution (Further Powers) Committee has considered the issue of inter-governmental relations with regard to the transparency of these relationships and specifically the role of legislatures in scrutinising inter-governmental relations. In doing so, the Committee has sought to learn from the experience of legislatures in federal and quasi-federal systems.

5. This report makes a range of recommendations on the guiding principles that will improve parliamentary scrutiny of inter-governmental relations and whether the principles and processes that will underpin such scrutiny should be placed on a statutory footing. The information that legislatures will require from governments in order to undertake effective scrutiny is also considered. The Committee recognises that improved scrutiny will not just result from actions by governments but rather requires reform of legislative structures. To this end, the Committee makes a number of recommendations with regard to the scrutiny structures of the Scottish Parliament.

6. The negotiations with regard to a reformed structure of inter-governmental relations are currently underway and the Committee is not party to the detail of discussions. However, the role of legislatures in scrutinising these relationships will be critical to public understanding of the proposals for further devolution. The Committee therefore expects that recommendations in this report will inform, and be taken account of, in the on-going discussions and negotiations that are currently taking place. Specifically with regard to the current negotiations, the Committee reiterates its view that adequate time be allowed for parliamentary scrutiny of the revised Memorandum of Understanding. The Committee also expects that the fiscal framework - part of the Scotland Bill process – is considered by this Committee and the Parliament before consideration can be given to any Legislative Consent Memorandum.

Current formal structures of IGR in the UK – an overview

7. The formal structure of IGR in the United Kingdom is set out in the ‘Memorandum of Understanding, and Supplementary Agreements between United Kingdom Government, Scottish Ministers, Welsh Ministers and the Northern Ireland Executive Committee’. This Memorandum of Understanding (MoU) was first agreed in 1999 by the UK Government, Scottish Ministers, Welsh Ministers and the Northern Ireland Executive Committee and has subsequently been subject to redrafts in July 2000, December 2001, March 2010, September 2012 and October 2013. The MoU was formally presented to the UK Parliament and the devolved legislatures. The Scottish Government provided a summary of the content and history relating to the redrafting of the Memorandum of Understanding and this is reproduced at Annexe A of this report.

8. The purpose of the MoU1 was to outline the procedures for communication, consultation and cooperation between the UK Government and the Devolved Administrations. The MoU also sets out arrangements for the exchange of information, statistics and research as well as setting out confidentiality arrangements in relation to the information which Governments provide to each other. The MoU was a non-binding agreement between the signatories and does not have a legal effect. The nature of the Memorandum is summarised within the documents as being—

a statement of political intent, and should not be interpreted as a binding agreement. It does not create legal obligations between the parties2.

9. The MoU establishes a formal structure, termed the ‘Joint Ministerial Committee’ (JMC) which provides “some central co-ordination of the overall relationship”3 between the four administrations that are signatories to the MoU. The terms of reference of the JMC are—

to consider non-devolved matters which impinge on devolved responsibilities, and devolved matters which impinge on non-devolved responsibilities;

where the UK Government and the devolved administrations so agree, to consider devolved matters if it is beneficial to discuss their respective treatment in the different parts of the United Kingdom;

to keep the arrangements for liaison between the UK Government and the devolved administrations under review; and

to consider disputes between the administrations4.

10. The JMC is required, under the terms of the MoU, to hold plenary meetings at least once a year. Plenary meetings are attended by the UK Prime Minister (or a representative for the Prime Minister) who chairs the meeting, the Scottish and Welsh First Ministers along with one of their Ministerial colleagues, the Northern Ireland First Minister and deputy First Minister as well as the Secretaries of State for Scotland, Wales and Northern Ireland.

11. The JMC is currently supported by two formal sub-committees. These are firstly, a Joint Ministerial Committee dealing with ‘domestic’ policy issues termed JMC(D), set up in the wake of devolved elections in 2007 and secondly, a Joint Ministerial Committee dealing with European Union. Only the latter holds regular, scheduled meetings according to a timetable set by European Union Council meetings and is termed JMC(E). In addition, although not formally a body governed by the terms of the Memorandum, a further forum of Finance Ministers - the Finance Ministers Quadrilateral (FMQ) also convenes periodically to consider financial issues.

12. During the period between October 2002 and May 2007, when the Northern Ireland Assembly was suspended, no JMC meetings took place with the exception of meetings of the JMC(E). Since 2008, the JMC has met in plenary form (usually annually) and in its domestic format (once or twice a year). Finance Ministers’ Quadrilaterals tend to be less regular with the last meeting having taken place in November 2013.

13. In addition to formal quadrilateral structures, two bi-lateral structures have been established recently to manage relations between the Scottish and UK Governments, with a particular emphasis on managing the transfer of new devolved powers. A UK – Scotland ‘Joint Exchequer Committee’ (JEC) was established in 2011 to facilitate the transfer of tax and borrowing powers contained in what became the Scotland Act 2012. Secondly, as a consequence of the current proposals for devolution of aspects of welfare policy, contained within the current Scotland Bill, a Joint Ministerial Working Group on Welfare was established in 2015 to discuss arrangements for transferring social security powers and managing shared responsibilities in this sphere.

Views on the current arrangements

14. Despite the focus on formal structures, it is important to re-emphasise that most inter-governmental relations in the UK take place informally between officials on a bilateral basis and ultimately in ad hoc meetings or communications between ministers. This perspective on the reality of IGR in the UK and the efficacy of existing formal structures was commented upon by the Deputy First Minister, in considering the issue of block grant adjustment in relation to the devolution of Land and Buildings Transactions Tax, as follows—

My view is that such issues are, ultimately, only ever sorted out at political level between ministers—we can have whatever “mechanism” we want. I will illustrate what I am saying using the block grant adjustment. When Bruce Crawford was in the Government, he and I started off the joint exchequer committee so that we could discuss the block grant adjustment. We had processes, all the means of resolving issues and all the evidence work and research that was done by our officials: ultimately, however, the resolution came down to a 15-minute conversation between the Chief Secretary to the Treasury and me. Such questions will be resolved politically by ministers, as long as there is willingness to do that5.

15. Similarly, Ken Thomson, Director General for Strategy and External Affairs, Scottish Government, also stressed the importance of informal contacts when commenting that—

A great deal of what we call IGR in this context actually happens below the waterline, in day-to-day contacts between ministers and officials. That is where a lot of the co-operation happens. As is the case within a Government, most issues between Governments can be dealt with in that space. Other things will come to the surface and be escalated to ministerial or intergovernmental level6.

16. Nevertheless, the formal structures underpinning inter-governmental relations in the UK have clearly been undergoing a process of evolution and expansion as the nature of the devolution settlement has changed. However, these formal structures have also been subject to considerable criticism. This was a concern that was reflected in Lord Smith’s four personal recommendations contained in the foreword to the Commission’s report where Lord Smith comments—

Throughout the course of the Commission, the issue of weak inter-governmental working was repeatedly raised as a problem. That current situation coupled with what will be a stronger Scottish Parliament and more complex devolution settlement means the problem needs to be fixed. Both Governments need to work together to create a more productive, robust, visible and transparent relationship7.

17. Recently, the House of Lords Constitution Committee was also critical of existing inter-governmental structures commenting that—

It is clear that, while some parts of the JMC structure work better than others, in the eyes of the devolved administrations at least the way the JMC system works at present is not satisfactory. The Domestic sub-committee, in particular, does not appear to serve a useful purpose8.

18. In evidence to the Finance Committee, the Deputy First Minister commented on formal IGR structures and the bilateral relationships that exist between the Scottish and UK governments in the following terms—

One of my criticisms of the intergovernmental mechanisms is that they have been rather rigid and scripted and not particularly relevant. I hope that we can improve them. For completeness, I should also say that, although the formal mechanisms of intergovernmental working—in my experience over the past eight years—have not been particularly valuable, a lot of good bilateral intergovernmental working is taking place in sorting out particular issues and policy questions, which is beneficial to us all9.

19. With regard to parliamentary scrutiny of IGR by legislatures in the UK, the Committee has received a range of evidence which considers that this has been a particular area of weakness in the structure of IGR within the UK. For example, Professor McHarg of Strathclyde University commented—

…parliamentary scrutiny has been one of the areas in which the current system has not worked. Neither the Scottish Parliament nor the UK Parliament has taken any consistent interest in scrutiny of intergovernmental relations. There have been some ad hoc inquiries, but that is all10.

20. In a similar vein, the Committee has received evidence indicating that the culture of confidentiality around IGR in the UK is particularly entrenched. For example, Professor Michael Keating observed—

Whenever there is intergovernmental working, things disappear into rather opaque arenas. That is really not necessary. It is a peculiarly British habit that we like to have our arguments in private before presenting things to the public, and Governments will sometimes exploit that in order to stay away from the public gaze. …The point about parliamentary scrutiny is absolutely right. We have very poor parliamentary scrutiny of intergovernmental relations11.

Impact of the proposals for further devolution on IGR

Recommendations of the Smith Commission

21. The Smith Commission recommendations for further devolution will necessarily result in a greater degree of shared powers existing between the Scottish and UK Governments than has been the case under the devolution settlement to date. Accordingly, the Commission considered that substantial reform of the current inter-governmental structures were required if the proposals for further devolution were to be delivered effectively. The Commission commented that—

The parties believe that the current inter-governmental machinery between the Scottish and UK Governments, including the Joint Ministerial Committee (JMC) structures, must be reformed as a matter of urgency and scaled up significantly to reflect the scope of the agreement arrived at by the parties. The views of the other devolved administrations will need to be taken fully into account in the design of the quadrilateral elements of that revised machinery12.

22. The Commission’s report went on to recommend the development of a new Memorandum of Understanding between the UK Government and the devolved administrations which would include details of new bilateral governance arrangements to deal with implementation and operation of the proposed devolution of tax and welfare powers. The Commission also proposed the creation of a range of new JMC sub-committees which could include, but not necessarily be limited to, policy areas including home affairs, rural policy, agriculture and fisheries and/or social security/welfare issues.

23. The Smith Commission also made recommendations with regard to the role of legislatures within this ‘scaled up’ structure of inter-governmental machinery. The Commission recommended that in parallel to this revised IGR machinery that—

formal processes should be developed for the Scottish Parliament and UK Parliament to collaborate more regularly in areas of joint interest in holding respective Governments to account13.

24. The Commission’s report then went on to make specific recommendations as to how the revised inter-governmental machinery could be underpinned by stronger and more transparent parliamentary scrutiny. Specifically, the Commission recommended that this should include—

(a) the laying of reports before respective Parliaments on the implementation and effective operation of the revised MoU.

(b) the pro-active reporting to respective Parliaments of, for example, the conclusions of Joint Ministerial Committee, Joint Exchequer Committee and other inter-administration bilateral meetings established under the terms of this agreement14.

25. The UK Government and the four devolved administrations have agreed to review the MoU and the structures associated with the MoU. Phillip Rycroft, the lead civil servant within the UK Government responsible for reviewing the MoU, summarised the context for the review in the following terms—

We have had a system of intergovernmental relations in place since devolution in 1999, with JMC machinery supported by the MOU. In fact, there is a complex set of concordats and MOUs that cover a number of different parts of business.

That system has served its purpose—very well, in the view of some—over the years, but we are coming to a major juncture in the devolution settlements. There are proposals currently before the Westminster Parliament for further devolution for Scotland, and a commitment from the UK Government for further devolution to Wales and a significant change in the Welsh settlement, and—following the Stormont House agreement—changes in the Northern Ireland settlement. The devolution settlements are changing. The JMC plenary that met last year, chaired by the Prime Minister, with the Welsh and Scottish First Ministers and the Northern Irish Deputy First Minister in attendance, agreed—by consensus, as always—that it was an appropriate moment to review the machinery of the JMC and the associated MOU15.

The Committee’s perspective

26. The Devolution (Further Powers) Committee has previously taken evidence and made a range of conclusions and recommendations, in its Interim Report ‘New Powers for Scotland’16, with regard to parliamentary oversight of IGR. These conclusions and recommendations are worth re-iterating here. Firstly, the Committee recognised that ensuring that the Scottish and UK parliaments, and other devolved assemblies, can effectively scrutinise IGR represented a significant challenge. The Committee agreed with the Smith Commission view that the current IGR machinery would not be fit for purpose to cope with the new structure of shared powers proposed by the Smith Commission. Secondly, the Committee recognised that for IGR to operate effectively there has to be space for discussions to take place in confidence. However, the Committee went on to recommend that—

“any future bill should place the general principles underpinning the operation of inter-governmental relations in statute. The Committee also considers that the general principles underpinning the structures which will be put in place for dispute resolution should also be placed in statute. Such a bill should also include the general principles which will enable Parliamentary scrutiny of this process to take place. The Committee considers that the detail of the process for conducting inter-governmental relations should then be placed in a Memorandum of Understanding agreed between the governments. During this process, the Committee expects the Scottish Government to report to the Parliament and its committees on the progress of discussion and specifically before any final agreement is reached”17.

27. Specifically, the Committee highlighted that issues associated with inter-governmental relations would be most acute in the policy areas of European Union representation, taxation, welfare and employment support. Accordingly, the Committee considered that a scaled-up IGR framework would require both bi-lateral structures to be established between the Scottish and UK Government as well as multi-lateral structures between the UK Government and the devolved administrations, with a formal role for the UK’s parliaments to scrutinise these interactions as appropriate if that was a role they envisaged for these institutions.

Views of the two governments on IGR

28. The Scottish Government responded to the Committee’s recommendations with regard to inter-governmental relations in the following terms—

The Scottish Government recognises that the intergovernmental machinery requires overhaul.….We remain open-minded about the need for statutory underpinning of inter-governmental principles and dispute resolution. While this might help to encourage administrations act in line with the sound principles set out in the MOU, it could prove cumbersome and the mechanism by which it would be enforced is not clear18.

29. The Scottish Government’s response went on to agree with the Committee’s recommendation that bi-lateral and multi-lateral structures would be required to reflect the new areas of overlap and shared policy competence set out in the Scotland Act 2012 and the Scotland Bill 2015. The Scottish Government summarised their approach to considering the role of parliaments in scrutinising inter-governmental relations in the following terms—

Our aim is to be as open as possible while respecting the need for a degree of confidence while negotiations with other administrations are on-going. There will also need to be clear rules for sharing of data produced by the UK Government19.

30. In oral evidence to the Committee, the Scottish Government’s Director General for Strategy & External Affairs, Ken Thomson commented on this issue that—

Past practice is probably not the best guide to future practice in this space, and that applies to the changes in the devolution settlement. I will take the two most salient examples. If and when further powers over tax and welfare are devolved to the Scottish Parliament and the Scottish Government, that will intensify the requirement for close working between the UK Government and the Scottish Government. Past practice in this context is not a good guide as to what practice should look like in the future in terms of the visibility and understanding of how those relationships operate, how they deliver value and how the operators in this space are held to account by their respective Parliaments20.

31. The Secretary of State for Scotland, in his response to the Committee’s Interim Report, did not comment specifically on the issue of parliamentary scrutiny of IGR. However, the Secretary of State commented generally on IGR that—

All four administrations should work more closely to deliver for the people of the UK. The Government is committed to doing so. A joint process between the UK and Scottish Government is already up and running to ensure the arrangements we have in place make for effective working relationships. We are committed to exploring jointly a range of options for enhancing intergovernmental relations with the Devolved Administrations and will work together to make collective improvements21.

32. In later correspondence to the Committee, the Secretary of State for Scotland commented that the intergovernmental structures required to deliver the Smith Commission agreement “may largely depend on what the Scottish Government choose to do with the powers”22. More generally, the Secretary of State noted that a process had been put in place to revise the MoU between the UK Government and the devolved administrations. In oral evidence to the Committee Phillip Rycroft, Second Permanent Secretary, Head of UK Governance Group, of the UK Government Cabinet Office, observed that—

It is probably true to say that parliamentary scrutiny across the piece has been relatively light over the past few years. I suspect—certainly from my perspective, working in the Whitehall context—that that will change. There is a lot of interest in this work from the House of Lords Constitution Committee and the Political and Constitutional Reform Committee in the House of Commons, so I anticipate that we will face increased scrutiny on intergovernmental relations in the months and years ahead.

…we need to think about the fact that, in order for effective scrutiny to take place, Parliaments and the wider public need to understand what is happening in the intergovernmental space23.

Parliamentary scrutiny of IGR in other jurisdictions

33. At present, systematic and sustained parliamentary scrutiny of inter-governmental relations by legislatures in the United Kingdom is notable by its absence. In the view of the House of Lords Constitution Committee such scrutiny is “sporadic and ineffective”24. Since this Committee was established, the issue of the lack of parliamentary scrutiny of inter-governmental relations has been a recurring theme. Related to this has been the suggestion from a variety of witnesses that the Committee should consider how such scrutiny is conducted in other jurisdictions. For example, Mr Ken Thomson of the Scottish Government commented—

There is a lot to learn from how from how intergovernmental relations are handled in systems that have a more federal or quasi-federal structure, although I am not advocating that structure. I am thinking of places where the process works according to a different model, such as Australia, Canada and, in a slightly different way, Spain. To pick up an earlier point, Britain has been through a more evolutionary and incremental process, so we can learn from looking at experience overseas25.

34. More generally, the Committee is aware of the public concern at the lack of scope there has been for consultation on, and public engagement with, the proposals for further devolution generally and the proposals which will emerge through the inter-governmental negotiations which are currently on-going, including the fiscal framework. Again, this has been a view that the Committee has received consistently in evidence. For example, Professor Aileen McHarg commented, in written evidence, with regard to recommendations made by the Committee in its interim report that—

The Committee is right to be concerned that the appropriate mechanisms for IGR are in place and have been agreed to by the Parliament before the Bill is enacted. Whilst I understand that a process of reviewing the existing IGR machinery is on-going, it is unsatisfactory that this is – once again – being treated as a matter for negotiation between officials, rather than something in which there is a legitimate parliamentary and public concern26.

35. The Committee has undertaken a range of work considering the parliamentary scrutiny of inter-governmental relations in a variety of federal and quasi-federal jurisdictions. This has included the commissioning of external research and evidence taking in formal and informal settings. The external research report commissioned by the Committee can be found at Annexe B.

36. The Committee has undertaken this work on this issue with the wider understanding that it was not expected that there would be a model or template from another country which could be applied to the UK system of devolution. However, the Committee has sought to learn from processes, procedures and principles that underpin such scrutiny in other jurisdictions in order to inform on-going negotiations within and between governments on the reform of the MoU and the operation of inter-governmental machinery.

37. The evidence that the Committee has taken on international comparators has tended to confirm that legislatures in federal and quasi-federal systems face challenges in scrutinising inter-governmental relations. Frequently, the non-statutory or non-binding character of inter-governmental agreements, for example in Canada, limits the formal means through which to scrutinise inter-governmental decision-making. In jurisdictions where statutory processes are in place, such as Belgium, parliaments can have a more formal role in consenting to intergovernmental agreements, usually with the capacity to either reject or accept agreements rather than amend them.

38. The Committee took evidence from a number of international academic experts with regard to inter-governmental relations and parliamentary scrutiny in a number of jurisdictions. This evidence reinforced the view that legislatures in federal and quasi-federal systems are at best weak actors in terms of their capacity to scrutinise inter-governmental relations. The quotes below provide an indication of the evidence that the Committee received. Professor Julie Simmons, of the University of Guelph, commented in relation to Canada that—

The discussions between the central Government and the provincial Governments, to the extent to which they take place, are in extra-parliamentary forums, outside the legislatures at the central and the provincial levels, and they exclusively involve the executive branch of government27.

39. In relation to the position in Germany, Professor Nathalie Behnke from the University of Konstanz, stated—

I am not aware of any formal mechanism of parliamentary scrutiny on intergovernmental relations. … We have 18 ministerial councils in more or less every policy field, in which the Länder ministers meet regularly – between two and four times year. The federal ministers are involved in most of those conferences28.

40. With regard to Switzerland, Dr Sean Muller of the University of Berne, summarised the position in the following terms—

The Swiss cantonal, or regional, Parliaments are not at all effective in overseeing intergovernmental relations, because that is considered to be the Government’s prerogative. It is considered that such relations fall under foreign affairs, even if they are with other cantons within Switzerland – another canton is like a different country in that sense29.

41. Lastly, Professor Bart Maddens of the University of Leuven outlined a more nuanced situation and observed that—

In Belgium, intergovernmental relations are largely based on co-operation agreements between the various authorities. Some of the agreements are executive; others are legislative and have to be agreed by Parliament. About half of the co-operation agreements, because they have implications that are legislative or budgetary or they generate rights or obligations for the citizens, have to be put before Parliament.

In Parliament, the co-operation agreements are dealt with at the federal and the member states level in the same way as international treaties, which implies that they cannot be amended by Parliament. Parliament either agrees or disagrees. I do not know of any instances where Parliament has ever disagreed, yet the co-operation agreements are very important, because they limit the scope of legislative work afterwards, so the legislation has to be in conformity with the agreements. In Belgium, Parliament’s involvement in bringing about and agreeing the co-operation agreements is very limited, which is generally considered to be a democratic deficit30.

42. To help us better understand this area, the Committee commissioned external research from Professor Nicola McEwen, Dr Bettina Petersohn and Coree Brown Swan of the Centre for Constitutional Change based at the University of Edinburgh. The Committee is grateful to these experts for their assistance in this Report through the provision of the external research.

43. The external research considered legislative oversight of inter-governmental relations in Belgium, Canada, Germany, Spain, Switzerland, the United States of America and also scrutiny approaches of member state legislatures of European Union policy and legislation. The research reached two broad conclusions as follows—

In every country, intergovernmental relations are dominated by executives, with relatively limited opportunities for parliaments and parliamentarians to engage in legislative oversight of processes, negotiations and agreements.

In spite of this general constraint, in almost every country examined here, the role of parliaments in scrutinising IGR is greater than the role the UK’s parliaments currently enjoy in the scrutiny of UK IGR31.

44. The research concluded that there tended to be two main routes via which political actors could seek to gain knowledge of and influence over inter-governmental decision-making. Firstly, in countries where political parties are highly integrated in their organisations and are strong in central and sub-state governments and parliaments across the country, such as in Germany and Switzerland, informal networks within political parties tend to provide a means of access into inter-governmental processes, information and decision making. A second common route was to seek to challenge inter-governmental decisions or agreements through recourse to the judicial system and in particular through appeal to a Constitutional Court.

45. Where legislatures have established specific structures, to scrutinise inter-governmental decision-making, these tended to take three forms. Firstly, through debates of the entire parliament with regard to agreements governments have reached. Secondly, through the establishment of a specific parliamentary committee to scrutinise inter-governmental relations. Thirdly, through mainstreaming scrutiny of inter-governmental relations across subject committees with individual committees considering inter-governmental relations within specific policy areas.

46. In some instances, even where institutional structures to facilitate scrutiny exist, these can be undermined by a lack of political incentives or will to undertake scrutiny of inter-governmental relations. For example, the trend in Belgian federalism for sub-state legislatures to seek to operate as separate entities with little incentive or motivation for joint-working tends to result in a lack of political will to scrutinise inter-governmental relations. The Committee also obtained evidence of inter-parliamentary co-operation being another legislative response in this field, notably in Switzerland.

47. Nevertheless the external research commissioned by the Committee did highlight the benefits which could accrue from legislatures having a greater role in the scrutiny of inter-governmental relations in terms of democratic accountability. Increased scrutiny of inter-governmental relations was considered as being beneficial in terms of raising general public awareness of, and debate regarding, inter-governmental decision-making. Such scrutiny could be facilitated by debates being held in either plenary meetings of parliaments or publicly held parliamentary committee meetings. Public scrutiny would as a minimum require the publication of information regarding the topics under discussion and decisions reached in inter-governmental forums.

48. In addition, parliamentary scrutiny of inter-governmental relations can act not only as a means of holding governments to account but also of supporting the actions of governments prior to inter-governmental negotiations. In this sense, legislatures require information regarding the position of government with regard to issues being discussed at forthcoming meetings in order to provide a mandate for the position of a particular government entering into inter-governmental negotiations.

49. Accordingly, the external research identified five issues for consideration arising from a comparative assessment of practice and procedures in other jurisdictions. These can be broadly summarised as follows—

I. Timing and access to information: That parliaments can be made more aware of formal, inter-governmental meetings through a record of proceedings, where available, being deposited with parliaments upon conclusion of such meetings. A record of significant informal meetings and working groups could also be reported to parliaments.

II. A Committee on IGR: The establishment of a dedicated, permanent committee to scrutinise IGR was an approach taken in most of the legislatures considered. Such a committee would deal with IGR alongside constitutional and other institutional matters. Such an approach did not prohibit subject-focussed committees from scrutinising IGR when this related to their policy remit.

III. Hearings/Evidence sessions: Obtaining formal evidence from governments on a regular basis, prior to and/or following formal intergovernmental meetings or following significant intergovernmental agreements. It may be appropriate for some of these meetings to be held in private. A Memorandum of Understanding between the Scottish Parliament and Scottish Government may be an appropriate mechanism to utilise to underpin executive – legislature relations in this area.

IV. Consent: In some countries, intergovernmental agreements are subject to the consent of parliaments. Given the increased significance of intergovernmental agreements, most notably relating to block grant adjustment and the fiscal framework, there may be a case for extending the Scottish Parliament’s consent powers.

V. Transparency and Public Engagement: In addition to the mechanisms outlined above, transparency would be enhanced by a commitment on the part of governments to report on the outcome of intergovernmental meetings. These reports could then be the subject of debate within a committee or of plenary meetings of the Scottish Parliament. Any intergovernmental agreements should also be made available for parliamentary and public scrutiny.

50. The Committee considers that there is no ideal model to adopt from the internal comparators that we looked at with regard the parliamentary processes that should be adopted in order to facilitate parliamentary scrutiny of inter-governmental relations. However, the Committee agrees with the view of the House of Lords Constitution Committee that “effective scrutiny of inter-governmental relations requires both greater transparency than currently exists, and the necessary structures and desire in Parliament and the devolved legislatures to scrutinise those relationships”32. The Committee’s consideration of practices in other jurisdictions has reaffirmed its view that there is a need for improved scrutiny in this area and for specific structures and processes to facilitate this be put in place.

51. In order to achieve this aim, the Committee considers that two key principles have been consistent throughout the evidence it has taken and in reviewing the operation of IGR in other jurisdictions with regard to the role of parliaments. Firstly, that the revised structure of inter-governmental relations must be transparent. This will involve ensuring that there is information about meetings, agendas, policy objectives and decision making in the public domain. This is essential in order to ensure that there is clarity around the basis for agreements reached between governments and decisions made. Secondly, accountability must be built into the revised structure of inter-governmental relations. The agreements reached between Governments must be subject to parliamentary scrutiny and therefore clear mechanisms require to be built into the revised MofU, currently being negotiated, to ensure that the role of parliamentary scrutiny is facilitated.

52. The remainder of this report considers what such structures and processes could look like within the context of the on-going negotiations that are taking place between governments in the United Kingdom to review the MoU and reform the inter-governmental apparatus.

Making IGR more transparent

A statutory basis for Parliamentary scrutiny?

53. The Committee’s consideration of the approach taken in other countries with regard to inter-governmental relations has found that the extent to which such relations are placed on a statutory basis varies considerably. A statutory approach tends to be most common in federal systems such as Germany and Belgium where there is generally more recourse to the Courts to settle areas of jurisdictional competence.

54. There is a distinction to be drawn between, on the one hand, placing the procedures for intergovernmental relations on a statutory footing, and on the other hand, making the agreements generating intergovernmental negotiations legally binding and subject to formal parliamentary approval. In some case, the agreements themselves include formal procedures for parliamentary oversight and consent, as well as the steps to be taken to uphold or amend the agreement. Where parliamentary approval is required, it is often over agreements which affect the powers of the parliament or which have financial implications.

55. The Committee has taken evidence on a range of approaches which are taken in relation to scrutinising the position of governments within European Union decision-making structures. All European Affairs Committees in member state parliaments are sent documents on EU policies emerging from the European Commission, so aiding their capacity to keep abreast of policy developments and potential intergovernmental issues. The extent to which these parliaments can scrutinise their own government’s intergovernmental engagements in the EU varies. A frequently cited example is that of the Danish Parliament’s European Affairs Committee, which mandates the negotiating position of the Danish Government prior to EU negotiations. In part the role of this Committee has developed due to the frequency of minority governments in Denmark to ensure that subsequent agreements subscribed to by the Danish government will be ratified by the Danish parliament. Nevertheless, the opportunity to hear from ministers in advance of intergovernmental meetings could add value to executive-legislative negotiations in the UK. For example, Professor Michael Keating commented in relation to this Committee—

With regard to the capacity of Parliaments to hold Governments to account in relation to European negotiations, the Nordic countries and particularly Denmark give an example of what can be done. Ministers have to come and explain their position to extremely specialised committees that know the dossiers, and those committees report back to the Parliaments. Something like that could be done here for intergovernmental relations. All the arguments about not showing your hand or about confidentiality are just special pleading by Governments that do not want to be held accountable33.

56. A formal role for German legislatures at State and Federal levels also exists in relation to inter-State treaties where the relevant government is required to inform their parliament four weeks in advance of entering into a treaty. This then provides the relevant legislature with an opportunity to debate a proposed treaty and thereby a formal role in the process.

57. The Committee is also aware of a range of more informal procedures which operate in order to enable legislative scrutiny of EU decision-making. For example, European Scrutiny Committees in both houses of the UK Parliament have reached agreement with the UK Government on the types of documents that the UK Government is required to deposit in the UK Parliament for consideration and scrutiny by the respective European Scrutiny Committees. Such documents tend to include Communications and legislative proposals made by the European Commission.

58. The Committee also notes the procedure existing in the UK Parliament, known as the ‘Ashton-Lidington undertakings’, which requires the UK Government to follow particular processes with regard to the UK Parliament when the European Commission publishes a proposal which a UK ‘opt-in’ applies to. The House of Lords European Select Committee summarised the ‘Ashton-Lidington undertaking’ as requiring—

Government departments to produce an EM [Explanatory Memorandum] within 10 working days of the publication of any proposal to which the UK opt-in decision applies, and to indicate the Government’s preliminary views on whether they will opt in. The Government will not reach a final view on the matter for eight weeks following publication, and will take account of any views expressed within that time by the EU Select Committee or the European Scrutiny Committee of the House of Commons. A Resolution formalising the eight-week scrutiny reserve was adopted on 30 March 201034.

59. In order to entrench the role of parliaments in any ‘scaled-up’ structure of inter-governmental relations there are clearly a range of options available from providing a statutory basis for parliamentary scrutiny to more informal mechanisms. Throughout the process of considering the role of parliamentary scrutiny in inter-governmental relations the Committee has been consistent in recognising the challenge which this issue represents and also the importance of providing governments within sufficient space to be able to resolve issues through negotiation and discussion. Nevertheless, the Committee considers that effective mechanisms to enable parliamentary scrutiny of IGR require to be codified and entrenched within the revised structure of IGR from the outset.

60. In order to ensure that the interests of the Scottish Parliament are protected from the outset, the Committee recommends that the principles of transparency and accountability are placed in statute in the Scotland Bill.

61. Furthermore, the Committee recommends that the processes which will be followed to facilitate Scottish Parliament scrutiny of IGR should be agreed between the Scottish Parliament and Scottish Government with an obligation on the Scottish Government to provide information and agreements from IGR meetings (see paragraph 65 below).

62. Finally, more widely in relation to the current revision of the MoU, we recommend that a specific section on Parliamentary oversight be included.

Provision of information to Parliament to enable effective scrutiny

63. The effectiveness of Parliamentary scrutiny of IGR will depend in part on its ability to be informed of the subject matter and timetable of the discussions between governments. The Deputy First Minister recently wrote to the Convener of the Finance Committee providing an update on discussions that took place at the meeting of the Joint Exchequer Committee in July 2015. This approach provides a platform to build upon. The Committee therefore makes a series of recommendations to improve upon current processes.

64. The Committee considers that a new Written Agreement on Parliamentary Oversight of IGR between the Scottish Government and the Scottish Parliament with regard to the provision of information and how the views of the Scottish Parliament will be incorporated with regard to IGR agreements is an appropriate approach to adopt in order to aid transparency in this area. Other legislatures in the UK may wish to consider similar arrangements that best suit their procedures.

65. The Committee considers that the information provided by governments must enable parliamentary scrutiny of formal, inter-ministerial meetings before and after such meetings. Such information must include, as a minimum, a ‘forward look’ calendar of IGR meetings and the agendas for these meetings. Subsequently, detailed minutes of meetings held and the text of any agreements reached must also be made available to legislatures in a timely manner.

Role of the Scottish Parliament

66. The lack of effective scrutiny of IGR by parliaments to date, including the Scottish Parliament, has been another recurring theme running through the evidence that the Committee has taken in this area. The Committee recognises the validity of this criticism and recognises the need to ensure that parliamentary scrutiny of IGR is ‘scaled up’ to take account of the increased importance of IGR as a consequence of the structure of shared powers contained within the Scotland Bill is essential.

67. In recognising the importance of improving scrutiny of IGR, the Committee recognises that legislatures internationally, at both state and sub-state level, find it problematic to scrutinise IGR. Legislatures generally are weak actors within this sphere for a range of reasons including the imbalance of resources between executive and legislatures and that IGR agreements are frequently non-binding and therefore not subject directly to parliamentary scrutiny. Nevertheless, the Committee’s consideration of the approaches taken in other legislatures within multi-level states has identified two common mechanisms via which legislatures seek to maintain oversight of inter-governmental relations.

68. Firstly, legislatures frequently establish specific committees which are tasked to scrutinise inter-governmental relations. For example, this approach is common amongst Canadian provincial legislatures and Belgian regions and communities. The external research report, commissioned by the Committee, commented on parliamentary scrutiny of IGR in Catalonia in the following terms—

Intergovernmental activities are coordinated in Catalonia by the Office of Institutional Relations and Promotion of Democratic Quality. This department is tasked with facilitating the promotion of partnerships between Catalonia, the Spanish Government and other regions, and is charged with supporting the work of the government in the Bilateral Commission and other joint bodies. It also has a monitoring role with respect to agreements signed between Catalonia and the central Ministry of Defence.

The Catalan Statute of Autonomy stipulates that conventions signed by the Catalan Government and the central government are to be published in the official gazette. Conventions signed with other autonomous communities must also be published. In compliance with this, the department publishes a searchable database of all agreements and MOUs signed by the Catalan government, including with institutions, the central state, other autonomous communities and local areas, and international partners. They are also published in the official gazette.

Within the Catalan Parliament, intergovernmental relations falls within the remit of the Institutional Affairs Committee which also has responsibility for the Statute of Autonomy, administration, local government, religious affairs and sport (amongst other competences). Officials within the ministry are also charged with coordinating relations between the parliament and the government.

Approval of conventions and agreements by parliament is required only in cases where the legislative powers of parliament are affected. If this is not the case, the Government is obliged to inform parliament of the convention or agreement within one month of its signature35.

69. Secondly, co-operation between legislatures within a jurisdiction was another common response by legislatures responding to inter-governmental structures and agreements. Legislatives responses varied from the establishment of formal parliamentary co-operation mechanisms, for example inter-cantonal structures in Switzerland, to informal networks between legislatures. The external research report, commissioned by the Committee, commented on inter-parliamentary cooperation that—

In some of the countries we examined, cooperation across parliaments within the multi-level system was regarded as a means of enhancing the scrutiny of IGR36.

70. The Committee recommends that the Scottish Parliament should give careful consideration to establishing a specific parliamentary committee or by providing a role or revised remit for an existing Committee which would be tasked to scrutinise inter-governmental relations and constitutional matters more generally in the next session of the Scottish Parliament. This should be a matter considered by a new Parliamentary Bureau shortly after the next Scottish Parliamentary election.

71. The Committee also recommends that the view of the Scottish Parliament should be taken account of before any inter-governmental agreement is entered into by the Scottish Government. The proposed parliamentary committee should scrutinise and report to the Scottish Parliament on any such inter-governmental agreement prior to debate in plenary session. Such a committee should also be tasked with obtaining evidence from the Scottish Government prior to and following formal, bilateral and quadrilateral, inter-governmental meetings.

72. The Committee also considers that greater inter-parliamentary cooperation in scrutinising inter-governmental relations would be beneficial. The Committee considers that such co-operation should begin on an informal basis but that the Scottish Parliament should give consideration to how such co-operation can be best facilitated and engage in a dialogue with other legislatures in this regard. This Committee has begun the process of discussing such matters with relevant committees in other legislatures across the UK.

Progress of the Scotland Bill

73. The negotiations regarding revising the MoU between the UK Government and the devolved legislatures and assemblies in the UK are currently on-going. The Committee notes that the revised MoU is due to be considered at a meeting of the JMC Plenary before the end of 2015. The Committee also notes that bi-lateral negotiations regarding the ‘fiscal framework’ are also currently taking place and agreement on a fiscal framework are expected to be concluded before the end of 2015.

74. The Committee reiterates the view, that it expressed in its interim report, that bi-lateral agreements will be most critical in the areas of taxation, welfare, employment support and European Union representation. In relation to these on-going discussions and negotiations the Deputy First Minister recently commented, in evidence to the Finance Committee, that—

I continue to be clear that effective parliamentary scrutiny of the framework is important, and I recognise that the Scottish Parliament will want to be assured that a robust and coherent fiscal framework is in place before it gives legislative consent to the Scotland Bill.

The fiscal framework needs to be fair and it needs to be workable. It is important that both Governments and Parliaments have a detailed and shared understanding of how the various elements of the fiscal framework should work, and what the clear implications may be.

There must be transparency and openness, and I strongly believe that there is a need for accountability and parliamentary scrutiny. Moving forward, the structures and working relations between the Scottish and United Kingdom Governments need to be reformed and made more effective. We need to look at how we work together to reach agreement, as well as how we work together to ensure the successful on-going operation of the new funding arrangements37.

75. Lastly, Phillip Rycroft, from the UK Government Cabinet Office, noted that—

The whole parliamentary nexus is something that we have to consider. Points on that have been raised by this committee, Smith and numerous others. How we manage the relationship between the processes of intergovernmental relations and parliamentary procedures is very much within our purview. On the question of formal involvement, my guess is that Parliaments are able to propose formal amendments to procedures where those procedures are bound into statute. Those two things would be hooked together. If we do not end up in a statutory space, a rather different relationship regarding input from the Parliaments would be required38.

76.The Committeereaffirms its view andagrees with the Deputy First Minister that it is essential that the fiscal framework is robust, coherent and subject to parliamentary scrutiny before any Legislative Consent Memorandum can be considered. To this end, the Committee signals its intention to undertake scrutiny of the fiscal framework later this year. The Committee emphasises that adequate time must be available for parliamentary scrutiny of the fiscal framework which the Committee considers is integral to the proposed operation of the powers proposed for devolution.

77. With regard to the revision of the MoU, the Committee also considers that it is essential that adequate time is also available for parliamentary scrutiny of the revised MoU. Moreover, the Committee considers that any bi-lateral agreements reached with regard to the operation of shared powers should also be subject to parliamentary scrutiny.

78. The Committee reiterates its view that adequate time is allowed for parliamentary scrutiny of the revised MoU, and in particular the fiscal framework, before consideration can be given to a Legislative Consent Memorandum. With regard to the fiscal framework, the Committee considers that this framework is critical to the operation of the powers proposed for devolution. Accordingly, the Committee expects to be consulted on the fiscal framework before it is formally agreed.

79. The Committee states that it is essential that these agreements are placed within a structure that is transparent and accountable. To this end, the Committee expects that the recommendations in this report inform, and are taken account of, in the on-going discussions and negotiations that are currently taking place.

Conclusions and recommendations

80. Since its establishment in 1999, the then Scottish Executive and now Scottish Government have taken on responsibility for an increasing share of revenue-raising and now, for the first time, are set to be responsible for a share of welfare powers.

81. The devolution arrangements between Scotland and the rest of the UK are becoming ever more complex, requiring increased dialogue and agreements between the two governments, and sometimes more widely, in order to operate effectively.

82. The existing structure that underpins this intergovernmental dialogue – the MoU between the two administrations and the apparatus of joint ministerial committees – has been described by Lord Smith of Kelvin in his Commission’s final report as problematic; we agree.

83. He called for both governments to work together to create a more productive, robust, visible and transparent relationship. The last of these principles – greater transparency – is critical.

84. Despite the importance of the intergovernmental arrangements, the Scottish Parliament has not been an active player in agreeing how the Scottish Government should deal with other governments in the UK and how it is best held accountable for this. The original MoU and successive updates have received little if any scrutiny and, between times, the on-going relationship between the administrations and the agreements they reach across a whole range of policy matters are rarely questioned. This must change.

85. This Parliament is not alone in its weaknesses. Our research on international comparators has shown that other legislatures in federal and quasi-federal systems also tend to be at best weak actors in terms of a scrutiny role in relation to inter-governmental relations.

86. To help improve the situation, we set out a series of recommendations below.

Guiding principles

87. Recommendation One: The Committee recommends that two guiding principles will improve scrutiny in this sphere. Firstly, that the revised structure of inter-governmental relations must be transparent. This will involve ensuring that there is information about policy objectives and decision making in the public domain. This is essential in order to ensure that there is clarity around the basis for agreements reached between governments and decisions made. Secondly, accountability must be built into the revised structure of inter-governmental relations. The agreements reached between Governments must be subject to scrutiny and therefore clear mechanisms require to be built into the revised MoU, currently being negotiated, to ensure that the role of parliamentary scrutiny is facilitated.

A statutory underpinning

88. Recommendation Two: In order to ensure that the interests of the Scottish Parliament are protected from the outset, the Committee recommends that the principles of transparency and accountability are placed in statute in the Scotland Bill.

89. Furthermore, the Committee recommends that the processes which will be followed to facilitate Scottish Parliament scrutiny of IGR should be agreed between the Scottish Parliament and Scottish Government with an obligation on the Scottish Government to provide information and agreements from IGR meetings (see recommendation three below).

90. Finally, more widely in relation to the current revision of the MoU, we recommend that a specific section on Parliamentary oversight be included.

Information provision

91. Relying on governments to decide if and how much they inform the legislature about their dealings and agreements with other administrations will prejudice the ability of a Parliament to hold its executive to account. Whilst governments must be given time and space to discuss matters amongst themselves and seek to reach agreements away from the glare of publicity, there still needs to be a degree of knowledge of, and accountability for, those final agreements.

92. Recommendation Three: The Committee considers that a new Written Agreement on Parliamentary Oversight of IGR between the Scottish Government and the Scottish Parliament with regard to the provision of information and how the views of the Scottish Parliament will be incorporated with regard to IGR agreements is an appropriate approach to adopt in order to aid transparency in this area. Other legislatures in the UK may wish to consider similar arrangements that best suit their procedures.

93. The Committee considers that the information provided by governments must enable parliamentary scrutiny of formal, inter-ministerial meetings before and after such meetings. Such information must include, as a minimum, a ‘forward look’ calendar of IGR meetings and the agendas for these meetings. Subsequently, detailed minutes of meetings held and the text of any agreements reached must also be made available to legislatures in a timely manner

Reforming the structure of the Scottish Parliament to make scrutiny of IGR more effective

94. Recommendation Four: The Committee recommends that the Scottish Parliament should give careful consideration to establishing a specific parliamentary committee or by providing a role or revised remit for an existing Committee which would be tasked to scrutinise inter-governmental relations and constitutional matters more generally in the next session of the Scottish Parliament. This should be a matter considered by a new Parliamentary Bureau shortly after the next Scottish Parliamentary election.

95. Recommendation Five: The Committee also recommends that the view of the Scottish Parliament should be taken account of before any inter-governmental agreement is entered into by the Scottish Government. The proposed parliamentary committee should scrutinise and report to the Scottish Parliament on any such inter-governmental agreement prior to debate in plenary session. Such a committee should also be tasked with obtaining evidence from the Scottish Government prior to and following formal, bilateral and quadrilateral, inter-governmental meetings.

96. Recommendation Six: The Committee also considers that greater inter-parliamentary cooperation in scrutinising inter-governmental relations would be beneficial. The Committee considers that such co-operation should begin on an informal basis but that the Scottish Parliament should give consideration to how such co-operation can be best facilitated and engage in a dialogue with other legislatures in this regard. This Committee has begun the process of discussing such matters with relevant committees in other legislatures across the UK.

Revising the arrangements for IGR in the UK

97. The IGR agreement in the UK – the Memorandum of Understanding and associated concordats – and structure of joint ministerial committees is currently being reviewed by the UK Cabinet office and the three devolved administrations. The objective is to lead to an agreed new arrangement between ministers in these governments. To date, there has been little parliamentary scrutiny of these discussions or on the shape of the final arrangements.

98. Recommendation Seven: The Committee reaffirms its view and agrees with the Deputy First Minister that it is essential that the fiscal framework is robust, coherent and subject to parliamentary scrutiny before any Legislative Consent Memorandum can be considered. To this end, the Committee signals its intention to undertake scrutiny of the fiscal framework later this year. The Committee emphasises that adequate time must be available for parliamentary scrutiny of the fiscal framework which the Committee considers is integral to the proposed operation of the powers proposed for devolution.

99. Recommendation Eight: With regard to the revision of the MoU, the Committee also considers that it is essential that adequate time is also available for parliamentary scrutiny of the revised MoU. Moreover, the Committee considers that any bi-lateral agreements reached with regard to the operation of shared powers should also be subject to parliamentary scrutiny.

100. Recommendation Nine: The Committee reiterates its view that adequate time is allowed for parliamentary scrutiny of the revised MoU, and in particular the fiscal framework, before consideration can be given to a Legislative Consent Memorandum. With regard to the fiscal framework, the Committee considers that this framework is critical to the operation of the powers proposed for devolution. Accordingly, the Committee expects to beconsulted on the fiscal framework before it is formally agreed.

101. Recommendation Ten: The Committee states that it is essential that these agreements are placed within a structure that is transparent and accountable. To this end, the Committee expects that the recommendations in this report inform, and are taken account of, in the on-going discussions and negotiations that are currently taking place.

Annexe A - Scottish Government summary of the evolution of the Memorandum of Understanding (MoU)

The text below reproduces a note on the evolution of the MoU which was provided to the Committee by the Scottish Government on 7 May 2015.

The Memorandum of Understanding and Supplementary Agreements
between
United Kingdom Government, Scottish Ministers, Welsh Ministers and the
Northern Ireland Executive Committee
A History.

The Pre-Devolution Period:

The original Memorandum of Understanding and Supplementary Agreements (MoU), having been drafted in 1999 in preparation for the establishment of the Devolved Executives, predates devolution as we now understand it. At the time of the 1999 draft, the arrangements to establish the Northern Ireland Executive was absent from the first version.

The original MoU, as with all successive iterations, was extra-legal in nature, making non-binding provision for good communication, consultation and cooperation between the UK Government and the Devolved Administrations, through the adoption of agreed principles of engagement and the establishment of a new, non-executive, intergovernmental forum, the Joint Ministerial Committee (JMC). The JMC would be able to convene in Plenary and functional (subject-specific) formats.

The Supplementary Agreements, incorporated into the high level MoU, due to the primary importance of the subject matter at that time, were:

  • Agreement on the Joint Ministerial Committee
  • Concordat on Coordination of European Union Policy Issues
  • Concordat on Financial Assistance to Industry
  • Concordat on International Relations
  • Concordat on Statistics

A number of bilateral and multilateral Departmental and subject specific Concordats and Service Level Agreements were also drawn up to supplement the MoU in specific policy areas although revision of these has varied from department to department.

Since then the MoU has transitioned through a further 5 redrafts.

The 1st Redraft – July 2000:

In July 2000 the Lord Chancellor presented a new MoU to the UK Parliament. This new version incorporated references to the Northern Ireland Executive, following the Executive Committee’s agreement to adopt the principles of the MoU and their agreement to participate in future meetings of the JMC.

The 2nd Redraft – December 2001:

The MoU contained a commitment to review its provisions on an annual basis. There is no record of significant changes having been made in the 2001 review.

The Suspension of the Northern Ireland Assembly October 2002 – May 2007:

The suspension of the Northern Ireland Assembly from 2002 to 2007 precluded amendments to the MoU during that period, since quadrilateral agreement between Administrations on amended provisions was not possible.

During that time, all meetings of the JMC fell into an abeyance, except those dedicated to European Union policy. These JMC (Europe) meetings continued, with the Secretary of State for Northern Ireland representing the interests of Northern Ireland.

The 3rd Redraft – March 2010:

Following quadrilateral agreement at the reconvened Plenary Session of the JMC in June 2008, work commenced on reviewing the MoU. The review was substantial and involved prolonged negotiations between administrations.

The role and remit of the JMC Joint Secretariat was set down as an addition to the Supplementary Agreement on the JMC. Similarly a robust set of principles and procedures for inter-Administration dispute resolution was also included in that Agreement.

Both the Concordats on Coordination of European Union Policy and Financial Assistance to Industry were reviewed and brought up to date. The Concordat on Statistics was removed and would continue as a stand-alone agreement between those statistics agencies operating in the four Administrations.

The 4th Redraft – September 2012

Following agreements at both Domestic and European Sessions of the JMC in 2012, the MoU was again updated and the changes were endorsed by Ministers at the Plenary Session in September that year.

The amendments included revisions of the clauses relating to Confidentiality as well as further revisions to the dispute process, to include an element of independent analysis, and to both the Concordats on Coordination of European Union Policy and Financial Assistance to Industry.

The 5th Redraft – October 2013

The 5th and most recent revision of the MoU focused primarily on updating clauses in the Concordat on Coordination of European Union Policy, primarily with regard to Attendance and representation at Council of Ministers and related meetings.

Annexe B - External research report

A copy of the external research report produced by Professor Nicola McEwen, Dr Bettina Petersohn and Coree Brown Swan of the Centre for Constitutional Change based at the University of Edinburgh can be accessed at:

http://www.scottish.parliament.uk/2015.09.30_IGR_External_Research_Report_FINAL.pdf

Annexe C – Extracts from the minutes of the meetings of the Committee and links to the Official Reports

8th Meeting, 2015 (Session 4)
Thursday 12 March 2015

Present:

Bruce Crawford (Convener)
Linda Fabiani
Rob Gibson
Alex Johnstone
Alison Johnstone
Bill Kidd (Committee Substitute)
Lewis Macdonald
Stewart Maxwell
Stuart McMillan
Duncan McNeil (Deputy Convener)
Tavish Scott

Apologies were received from Mark McDonald.

In attendance: Christine O'Neill, Nicola McEwen and Heidi Poon, Committee Advisers

The meeting opened at 9.31 am.

1. Proposals to devolve further powers to Scotland and scrutiny of the UK Government's draft legislative clauses: The Committee took evidence from—

John Swinney, Deputy First Minister & Cabinet Secretary for Finance, Constitution and Economy, Donald McGillivray, Deputy Director, Elections and Constitution Division, Stephen Kerr, Head of Social Security Policy and Delivery Division, and Sean Neill, Acting Deputy Director, Finance and Fiscal Responsibility Division, Scottish Government.


9th Meeting, 2015 (Session 4)
Thursday 19 March 2015

Present:

Bruce Crawford (Convener)
Linda Fabiani
Rob Gibson
Alex Johnstone
Alison Johnstone
Bill Kidd (Committee Substitute)
Lewis Macdonald
Stewart Maxwell
Stuart McMillan
Duncan McNeil (Deputy Convener)
Tavish Scott

Apologies were received from Mark McDonald.

In attendance: Heidi Poon, Nicola McEwen and Christine O'Neill, Committee Advisers

The meeting opened at 9.34 am.

1. Evidence on Intergovernmental Relations: The Committee took evidence from—

Ken Thomson, Director General for Strategy & External Affairs, Scottish Government;
Professor Michael Keating, Director, ESRC Centre on Constitutional Change;
Professor Aileen McHarg, School of Law, University of Strathclyde.


22nd Meeting, 2015 (Session 4)
Thursday 17 September 2015

Present:

Malcolm Chisholm
Linda Fabiani
Rob Gibson
Alex Johnstone
Alison Johnstone
Bill Kidd (Committee Substitute)
Stewart Maxwell
Mark McDonald
Stuart McMillan
Duncan McNeil (Deputy Convener)
Tavish Scott

Apologies were received from Bruce Crawford (Convener).

In attendance: Nicola McEwen (Committee Adviser)

The meeting opened at 9.03 am.

1. Parliamentary oversight of inter-governmental relations - international examples: The Committee took evidence from—

Professor Julie Simmons, University of Guelph;
Professor Nathalie Behnke, University of Konstanz;
Dr Sean Mueller, University of Berne;
Professor Bart Maddens, University of Leuven.

2. Reform of inter-governmental relations in the UK: The Committee took evidence from—

Philip Rycroft, Second Permanent Secretary and Head of UK Governance Group, Cabinet Office;
Ken Thomson, Director General for Strategy & External Affairs, Scottish Government.

Written submissions of evidence (from Professor Simmons, Professor Behnke, Dr Mueller and Professor Maddens)


24th Meeting, 2015 (Session 4)
Thursday 1 October 2015

Present:

Malcolm Chisholm
Bruce Crawford (Convener)
Linda Fabiani
Rob Gibson
Alex Johnstone
Alison Johnstone
Stewart Maxwell
Mark McDonald
Stuart McMillan
Duncan McNeil (Deputy Convener)
Tavish Scott

In attendance: Nicola McEwen (Committee Adviser)

The meeting opened at 10.00 am.

1. Report on parliamentary oversight of inter-governmental relations (in private): The Committee considered a draft report. Various changes were agreed to, and the report was agreed for publication.


Any links to external websites in this report were working correctly at the time of publication. However, the Scottish Parliament cannot accept responsibility for content on external websites

Footnotes:

1 Cabinet Office, Memorandum of Understanding and Supplementary Agreements, October 2013:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/316157/MoU_between_the_UK_and_the_Devolved_Administrations.pdf

2 Ibid, p.4

3 Ibid, p.10

4 Ibid, p.10

5 Scottish Parliament Devolution (Further Powers) Committee. Official Report, 12 March 2015, Col.12.

6 Scottish Parliament Devolution (Further Powers) Committee. Official Report, 19 March 2015, Col.4.

7 The Smith Commission, Report of the Smith Commission for further devolution of powers to the Scottish Parliament, 27 November 2014, p.5.

8 House of Lords Select Committee on the Constitution. Report on Inter-governmental relations in the United Kingdom, 27 March 2015, p.19.

9 Scottish Parliament Finance Committee. Official Report, 2 September 2015, Col.6.

10 Scottish Parliament Devolution (Further Powers) Committee. Official Report, 19 March 2015, Col. 10.

11 Ibid, Col. 12.

12 The Smith Commission. Report of the Smith Commission for further devolution of powers to the Scottish Parliament, 27 November 2014, para. 28.

13 Ibid, para. 29.

14Ibid, para. 30.

15 Scottish Parliament Devolution (Further Powers) Committee. Official Report, 17 September 2015, Col.22.

16 Devolution (Further Powers) Committee. New Powers for Scotland: An Interim Report on the Smith Commission and the UK Government’s Proposals, SP Paper 720, 3rd Report, Session 4.

17 Devolution (Further Powers) Committee. Ibid, p.123.

18 Scottish Government. Scottish Government Response to the Interim Report from the Devolution (Further Powers) Committee on the Smith Commission and the UK Government’s Proposals, 7 June 2015, p.23.

19 Ibid, p.23.

20 Scottish Parliament Devolution (Further Powers) Committee. Official Report, 17 September 2015, Col.24.

21 Scotland Office UK Government response to the Interim Report from the Devolution (Further Powers) Committee, 23 June 2015, p.7.

22 Scotland Office Letter from the Secretary of State for Scotland, 26 August 2015, p.2.

23 Scottish Parliament Devolution (Further Powers) Committee. Official Report, 17 September 2015, Col.23.

24 House of Lords Select Committee on the Constitution. Report on Inter-governmental relations in the United Kingdom, 27 March 2015, p.47.

25 Scottish Parliament Devolution (Further Powers) Committee. Official Report, 12 March 2015, Col.13.

26 Professor Aileen McHarg. Written evidence submitted to the Committee, p. 2.

27 Scottish Parliament Devolution (Further Powers) Committee. Official Report, 17 September 2015, Col.1.

28 Ibid, Col.2.

29 Ibid, Col.3.

30 Ibid, Col.3.

31 McEwen, Petersohn and Brown Swan, Intergovernmental Relations and Parliamentary Scrutiny: A comparative overview, September 2015, p.62.

32 House of Lords Select Committee on the Constitution. Report on Inter-governmental relations in the United Kingdom, 27 March 2015, p.47.

33 Scottish Parliament Devolution (Further Powers) Committee. Official Report, 11 December 2014, Col.20.

34 House of Lords European Union Committee, Report on 2014-15, 23 June 2015, Appendix 3.

35 McEwen, Petersohn and Brown Swan, Intergovernmental Relations and Parliamentary Scrutiny: A comparative overview’, 2015, p.51.

36 Ibid, p.67.

37 Scottish Parliament Finance Committee. Official Report, 2 September 2015, Col.2.

38 Scottish Parliament Devolution (Further Powers) Committee. Official Report, 17 September 2015, Col.37.

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