The JMC (Domestic) decides how to decide about disputes

The Domestic format of the Joint Ministerial Committee met on 10 March.  It sounds like an odd meeting: it was chaired by Peter Hain, Secretary of State for Wales, with the other UK ministerial attendance being junior ministers – but all three devolved First Ministers came, two of them (Carwyn Jones and Peter Robinson) accompanied by Deputy First Ministers, and Alex Salmond by his Minister for Culture and External Affairs (Fiona Hyslop).  The communiqué is available from the Cabinet Office’s website here.  (It’s also on the Scottish Government’s, here, and the Scotland Office’s, here.)

The communiqué indicates discussion on two topics: integrating employment and skills support (a classic area where devolved and non-devolved competences meet and interact), and a set of issues about the conduct of intergovernmental relations.  On the intergovernmental side, the revised Memorandum of Understanding was apparently finally approved (though that was supposed to be the case a year ago),  and will be published ‘shortly’ after internal ratification by each government (whatever that means).  Perhaps more of more practical use, a ‘Protocol for Avoidance and Resolution of Disputes’ was agreed between the four governments.  That’s available here.  According to the communiqué, these procedures are to be ‘fair, accessible, informed and responsive’.

While the protocol is a step forward – and is warmly welcomed as such by Alex Salmond in the Scottish Government’s news release – its content is actually rather underwhelming.  It’s largely a refined set of process, designed to identify potential disputes, resolve them at early stages if possible, and clarify the issues involved if they can’t.  That’s largely an elaboration of the existing procedures.  Most significant are the timescale for holding a JMC meeting (normally, to be within a month of notification of the dispute to the JMC Secretariat), and the formal commitment to notify all the administrations once that notice is lodged.  The last means that a formal dispute is by definition a multilateral one.   There are two specific exceptions to the new procedure set out in any case: finance matters (still to be handled under the Statement of Funding Policy, which means they go to the UK Cabinet), and issues relating to changes in the ‘overall statutory framework governing devolution’.

The extra degree of clarity about procedure set out in this Protocol may be useful, but it’s not a dramatic step forward.  It’s mostly a refinement of what would logically follow from a careful reading of paragraph 25 of the 2001 version of the MoU (see also para. A1.7 of the Agreement on the JMC). What’s going to be really important about these procedures is whether they’re actually used or not, and whether they work effectively when they are used.  As they’re so general, a lot will continue to depend on the attitudes of the ministers and officials involved at the time.  No doubt, when a dispute arises, the media will treat it as a ‘crisis in devolution’ – even though such disputes are common in other federal and decentralised systems, and the point of these processes is to enable real disagreements to be managed in a sensible way.

There are two odd points of protocol that can be noticed in the press notices of the JMC. First, the UK Government refers to ‘the Scottish Government’, something that the Scotland Office has done for some time, but which other departments, notably HM Treasury, has refused to do.  However, the UK has decided to call itself ‘HM Government’.  This is odd; it’s clear that the devolved administrations also exercise their functions on behalf of the Crown too.  (See section 52(2) of the Scotland Act 1998, or section 57(2) of the Government of Wales Act 2006.)  This terminology does little to clarify which government is in fact responsible for what.

Second, it’s a bit of a puzzle why this sort of matter was resolved by a functional format of the JMC, not the plenary one.  It is, after all,  pretty fundamental, and falls within the remit of ‘keeping the arrangements for liaison between governments under review’ – which was supposed to be a key function of the plenary JMC.  Clearly the governments involved see no need for the direct involvement of the UK Prime Minister in agreeing such matters, though the MoU would suggest that is the case.  In any case, there are obvious advantage in agreeing and implementing such arrangements as soon as possible, rather than waiting until the summer for the next plenary JMC.

10 March was quite a busy day on the intergovernmental front, with a ‘Food Summit’ convened by the Welsh Assembly Government taking place in Cardiff as well.   WAG’s press release about that is here.  This doesn’t appear to have been part of the regular cycle of monthly agriculture ministers’ meetings, not least because the UK Secretary of State for Food and Rural Affairs wasn’t present.  The UK was simply represented by Lord Davies of Oldham, Lords Parliamentary Under-Secretary.