Category Archives: Wales

Improving intergovernmental co-ordination: better intergovernmental relations and better devolution

I’ve a report out today on the procedural aspects of intergovernmental relations.  This was commissioned by the UK Changing Union project through the Wales Governance Centre at Cardiff University, and can be found on their website here. Today was also the day when the plenary Joint Ministerial Committee met; it agreed, among other things, a full-scale rewrite of the Memorandum of Understanding.  As this post argues, such a rewrite is overdue. 

Intergovernmental relations are key to making devolution work effectively. The Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly all operate in a wider context of governance across the UK, and how their functions overlap with those of the UK Government (and other governments) is vital for all four governments and all UK citizens. The Smith Commission’s recent report pays a good deal of attention to the need to ‘scale up’ intergovernmental co-ordination as part of the package of further devolution.

The UK Government is not very interested in managing intergovernmental relations, however. It put in place an attenuated under-institutionalised set of mechanisms in 1999, and has allowed that to weaken or fall further into disuse since then. The key institution is the Joint Ministerial Committee. Plenary meetings of that ceased altogether between 2002 and 2008; they have been more or less annual since then, but are characterised by grandstanding rather than productive work. The JMC’s ‘Domestic’ format has nearly ceased to function, as so few policy issues concern more than one devolved government. The only established format of the JMC which does meet regularly, and does more or less what it was expected to, is the EU format which helps formulate the UK ‘line’ for major EU Council meetings, though there are problems even there. In reality, most intergovernmental issues are bilateral, but with few exceptions they are dealt with in an ad hoc, casual way, out of sight of public or legislatures, and many important issues slip through the net.

The argument for a more systematic approach to intergovernmental relations is unanswerable. Such conduct is simply not consistent with ensuring that devolved governments are treated fairly, feel they have been treated fairly, and citizens from across the UK can see they have been treated fairly. The UK Government needs to recognise that such procedures are not appropriate for the changed constitutional landscape following the Scottish referendum – if they ever were appropriate at all. But different approaches have been repeatedly urged on the UK Government, through Parliamentary committee such as those in 2002 by the Lords Constitution Committee, in 2009 by the Commons Justice Committee or in 2010 by the Commons Welsh Affairs Committee. No change has resulted despite such repeated urging from across Parliament, and despite the potential advantages for the UK Government – whether better policy co-ordination, an indirect way of achieving its policy goals, or simply symbolically showing the UK’s ability to incorporate its various parts into a single multinational union.

The difficult question is what to do, given where we are now. Is it still appropriate to call for the sort of regular, multilateral meetings that are used in more symmetrical systems? Multi-lateral intergovernmental co-ordination has had little impact because it does not relate to the practical nature of government in a profoundly asymmetric UK where most issues are bilateral not multilateral. The plenary JMC is dominated by high politics driven by party concerns –a theatrical exercise which contributes little to efficient government, though it cannot be regarded as dignified given the degree of masochism it requires from the UK Prime Minister.

The JMC (Domestic) was meant to be a way of dealing with practical policy issues, but it has proved to be of limited and declining value. In practice, lower-level co-ordination relating to specific policy issues is done bilaterally, but it works inconsistently, and out of sight of the public and beyond legislative scrutiny. That makes for bad governance. It also creates a process from which Wales, structurally and regularly, is the loser, lacking the political clout and outside interest that shape how Scotland and Northern Ireland play the game.

So perhaps the way forward would be to stop talking of multilateral ministerial committees, and instead embrace the logic of bilateral relations in more co-ordinated way. The Part 2 report of the Silk Commission suggested a ‘Welsh Intergovernmental Committee to manage this, a recommendation supported by the Welsh Government in its response to Silk. Whether the UK Government would be willing to commit the senior ministerial time this would need is doubtful. A more appropriate way of working, building on existing arrangements and enhancing them, would be for the Secretary of State for Wales or the junior Wales Office Minister to take on an active role here. The Wales Office would take on the task of assessing the impact of UK Government business on devolved Welsh functions, and Welsh policy on non-devolved ones, on the basis of each respecting the other’s role, so that both governments are able to take an overview of the welter of business of each government that affects the other.

The second area that calls for change is how disputes and disagreements between governments are handled. When these are legal in character, they go to the UK Supreme Court, via various ‘leapfrog’ procedures. But when the issue is not whether a government or legislature has the power to act, but whether they behaved properly toward each other when they did, the situation is quite different. Since 2010, there has been an agreed ‘disputes avoidance and resolution mechanism’ in the Memorandum of Understanding, but it has proved to be particularly flawed in both its design and working. It has only met once, to consider the row arising from the way the UK Government stopped devolved governments from receiving consequential payments under the Barnett formula for the regeneration spending on the area around Olympic Park in Stratford, before the 2012 London Olympics. On that occasion, an hour-long meeting was shoe-horned into Francis Maude’s diary at 8.30 in the morning. Maude was involved as a UK Government minister who had not been involved in the matter previously – but putting another UK minister in charge of the process, one bound by collective responsibility to one side of the dispute but not the other, is a potent source of apparent if not actual bias.

Possible bias is only one problem. The other major problem is that the disputes resolution ‘panel’ has no power to do anything other than mediate the dispute – to seek to find an agreement between the UK department and devolved governments involves. If they cannot agree, there will be no resolution, but the absence of any resolution is going to favour the UK department in almost all possible cases. The fact that a ‘do-nothing’ outcome will always advantage the UK Government is a grave problem. And in issues about the working of the Barnett formula, there will be a third: the control the Treasury has over the Statement of Funding Policy. In this case, the Treasury was not merely judge in its own cause, with a jury from its side of the fence, but it wrote the rules as well!

Such an approach fails to meet even the most basic idea of fairness. At the very least, there needs to be an impartial mediator, perhaps a panel not an individual, and the possibility of causing some embarrassment for a recalcitrant government that refuses to give ground – at least by a public finding against it. This will fall some way short of the Smith Commission’s recommendation of ‘well functioning arbitration processes’, but again is more likely to be workable in practice.
Leaving matters to be handled in ad hoc, reactive, unstructured way is no longer an option for the UK Government. The question is how it wants to shape the way forward.

This post also appears on Click on Wales, here, and the ‘Future of Scotland and the UK’ programme blog, here

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Filed under Intergovernmental relations, Northern Ireland, Publications and projects, Scotland, Wales, Whitehall

New ‘page’ on the West Lothian question

I’ve just added a page explaining the West Lothian question to those on the blog.  It can be accessed through the links at the top of the page, or HERE.

One point often overlooked, which I discuss there, is the extent to which the anomaly of the West Lothian question is made worse by problems of mis-representation, which are fuelled by using the First-past-the-post electoral system.  The result is that Labour is disproportionately strong (compared to its share of the vote) in Scotland and Wales, as are both Conservatives and (somewhat less so) Labour in England.  The Lib Dems in England, the SNP and Conservatives in Scotland, and Plaid Cymru and the Lib Dems in Wales are the main losers.

There are arguments on both sides of the question of proportional representation, but its absence creates these anomalies that mean Labour has far more Scottish and Welsh MPs than its share of the vote justifies, and the Conservatives more English MPs.  A more equitable electoral system would reduce that disparity, and the degree to which the West Lothian question is played up or down for party advantage.

I’ll be saying something further about the possible solutions to the West Lothian question in the next few days.

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Filed under English questions, Scotland, UK elections, Wales, Westminster

‘Constitutional Futures’ workshop at Queen’s University Belfast, 10 October

Along with James Mitchell from Edinburgh and Aileen McHarg from Strathclyde, I’ll be taking part in a workshop on ‘The Direction(s) of Devolution’ in the law school at Queen’s University Belfast on Friday 10 October.  There is more information here, or the flyer can be downloaded here.  Capacity is limited; please email law-enquiries@qub.ac.uk if you’d like to attend.

 

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Filed under Events, Northern Ireland, Scotland, Wales, Westminster, Whitehall

‘Devo More’ seminar in Cardiff, 11 June 2013

I’m giving a seminar on Devo More and what it would mean for Wales in Cardiff on the morning of Wednesday 11 June. The full title is ‘Devo More: How fiscal and welfare devolution can benefit Wales and strengthen the Union’, and it is part of the UK Changing Union programme based by the Wales Governance Centre at Cardiff University, under the aegis of the National Assembly’s Cross Party Group on the Changing Union. (Those who haven’t seen them can find the Devo More and Welfare paper here, and Funding Devo More here.)
The seminar will take place at 8.30 am in conference room 24 in Tŷ Hywel, with tea, coffee and pastries provided. To book a place, please email info@ukchangingunion.org.uk.

UPDATE, 12 June: The slides from Tuesday’s talk are now available HERE.

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Filed under Devolution finance, Events, Publications and projects, Wales

Unlocking the lockstep?

There are interesting changes to the ‘Calman’ model of income tax in the Wales bill (which had its Commons second reading on Monday) and the Finance bill (which had its Commons second reading on Tuesday).

The ‘Calman’ model applies a ‘lockstep’ to the devolved income tax rate, which has to be the same for all three tax bands (basic, higher and additional or 45 per cent). That rate can be 0 per cent, 10 per cent (as it is at present) or some other figure but it must be the same for all three bands – so if the devolved rate were nine per cent, you would have tax rates of 19, 39 and 44 per cent. While this question did not attract particular attention when the Scotland Act 2012 was going through the UK and Scottish Parliaments, it has been controversial in Wales. It was not recommended by either the Holtham or Silk Commissions, and has attracted criticism from the Commons Welsh Affairs Committee, the First Minister (who called the power with the lockstep ‘pretty useless’) and the Plaid Cymru and Welsh Conservative leaders.

The provisions in the Wales bill mark a change from the draft bill published before Christmas. Instead of providing for a single ‘Welsh rate of income tax’ across all three bands, the key operational clause now provides for Welsh basic, higher and additional rates and defines each of them separately (see clause 9 of the bill). Clause 289 and Schedule 34 of the Finance (No 2) bill make similar changes to the finance provisions of the Scotland Act 2012. (Both bills also provide for beefed-up arrangements for reports on devolved tax powers by the Comptroller and Auditor General, something that was conspicuously missing from the Scotland bill.)

The substantive policy behind the devolved rate of tax remains the same; the lockstep is still in place, and UK Government policy backs it strongly. But this change creates the legal basis for having different rates of tax for each band, if that policy decision were taken later, by altering the rule regarding what a ‘Welsh’ (or ‘Scottish’) ‘rate resolution’ would be.

The application to Scotland appears to be an inversion of the position that ‘Wales gets what Scotland gets’, which is apparent throughout the finance provisions of the Wales bill. Since what Scotland has is proving politically very difficult in a Welsh context, creating a framework for a possible different approach is an interesting move. In the light of ongoing debates about fiscal devolution to Scotland, though, including the Scottish Labour Party’s proposals to increase the devolved rate of income tax from 10 to 15 points and to allow the Scottish Parliament to vary higher and additional rates upward, there are obvious potential uses on the table in Scotland as well.

UPDATE: There’s coverage of this issue – quoting me extensively – here, which appeared on the front page of Wednesday’s Scotsman, and a cartoon and comment, here.  It’s interesting to note a firm denial of the idea that there is any plan to break the lockstep from HM Treasury, reported in the Scotsman story.  Ben Riley-Smith of the Telegraph has also tweeted a denial from No. 10.  I don’t doubt the policy remains to maintain the lockstep, but also that this creates a smoother path to break it if the policy were to change.

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Filed under Calman Commission/Scotland bill, Devolution finance, Legislation, Scotland, Wales

‘Devo More and Welfare’ in ‘Scotland on Sunday’

The paper Guy Lodge and I have written on Devo More and Welfare as part of the wider Devo More project is published on Tuesday.   There’s extensive coverage of it in today’s Scotland on Sunday to whom we’ve given a preview of the paper, including a news article here and a comment piece by Guy and me here.

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Filed under Northern Ireland, Policy issues, Publications and projects, Scotland, Wales

The Silk Commission’s Part 2 report

If ever a report deserved careful consideration rather than an immediate response, it’s the Silk Commission’s Part 2 report.  The product of more than 15 months’ evidence-taking and deliberation, it is a carefully framed, principles-based blueprint for the next step for Welsh devolution.  The full report is available here, and the executive summary (which I must admit to having relied on for this post) is here.  There’s BBC News coverage here, here and here, and from Wales Online here.

The key recommendations are:

  1. devolution of policing to the National Assembly
  2. devolution of responsibility for youth justice, but not the courts or the legal system generally
  3. devolution of planning powers to approve energy projects of up to 350 megawatts, of powers relating to sewerage and the regulation of some aspects of water supply within Wales, and for there to be a Welsh Crown Estate Commissioner.
  4. some further devolution of powers in relation to rail franchising, bus and taxi regulation, and speed limits and drink-driving
  5. appointment of a Welsh member of the BBC Trust (something already in place for Scotland), and control for the Assembly over public funding for S4C
  6. an increase in the size of the National Assembly, noting many calls for 80 members but leaving the issue for further consideration
  7. an enhanced approach to the conduct of intergovernmental relations and the machinery for that. The Secretary of State for Wales would also lose his seat in the National Assembly, his right to receive its papers and obligation to present the UK Government’s legislative programme each Parliamentary session.
  8. perhaps most importantly, a move to a ‘reserved powers’ model for the National Assembly’s legislative powers, away from the current ‘conferred powers’ one, along with a removal of the current and problematic protection of pre-devolution powers of UK ministers.

There are also calls for further study of a number of matters – not just the size of the Assembly and the number of AMs, but also the possible devolution of prisons and the court system.  It sees no need for a further referendum on any of these proposals.

What is notable about this is how cautious it is.  The recommendations eschew a number of more radical calls – for the establishment of a separate legal jurisdiction, or for devolution of the civil or criminal courts, the civil or criminal law, or of welfare.  I argued in my own submission that it would be very hard to establish a ‘reserved powers’ model without establishing a separate legal jurisdiction, and that this could be done without losing many of the advantages of the current shared arrangement.  (See also THIS EARLIER POST on the relationship between a legal jurisdiction and legislative powers.)   I suggested as well that the Welsh Government’s proposals for a reserved powers model would imply a devolved power to legislate for areas like land or contract law (these are omitted from the Welsh Government’s proposed list of reserved matters).  This would achieve the substantive outcome of a separate legal jurisdiction without formally calling it such –which may be the worst of all worlds.

Welfare devolution is another area which would create a number of administrative problems but offers scope for major gains for both governments and for citizens – as we’ll be arguing shortly through the Devo More project.

The Silk proposals are, in essence, an attempt to make sure the division of powers between Welsh and UK institution catches up with reality.  They’re not actually very radical; they don’t take account, for example, of the impact of the September referendum on Scottish independence (whether there’s a Yes vote leading to Scottish independence and a restructuring of the remainder of the United Kingdom, or a No vote resulting in further devolution for Scotland).  Rather like Holtham before it, this is an exercise in bringing Welsh devolution up to date not making far-reaching plans for the future.

However, the proposals do represent a clear consensus across the Welsh political parties about what should happen next.  I’ll shortly be putting up a post about the problems arising from the way the UK Government approached Silk Part 1, and its profound misreading of the political and economic situation in Wales compared with Scotland.  The gravest mistake the UK Government could make would be to cherry-pick these proposals.  The second gravest would be to take a year to decide what to do, especially given that it has a legislative slot in the next Parliamentary session and not using that would mean a significant wait for any action – even though, from his initial reaction (saying a response would be for the next UK Parliament not the current one), that’s just what the Secretary of State seems to intend.

UPDATE, 4 March: Carwyn Jones’s response to the Silk Part 2 report, here, is interesting.  Although Jones calls for a substantial expansion of the powers of the National Assembly and Welsh Government, he appears unwilling to accept the logical implication that greater self-government means no longer being in a privileged position when it comes to UK-wide institutions.  He seeks to maintain the office of the Secretary of State (despite his well-publicised difficulties with both Conservative holders of that post), and the present number of Welsh MPs.  Both cases are poor. For a discussion of the Secretary of State, see HERE.  The latter case is if anything weaker.  Wales is presently over-represented at Westminster; if MPs were allocated to Wales on a similar basis to England, it would have around 32, not its present 40.  Scotland was similarly over-represented in the Commons before devolution, and the creation of the Scottish Parliament saw the number of Scottish MPs reduced to the English ‘quota’.  That meant a reduction from 72 to 59.  This was provided for in the Scotland Act 1998, and (to avoid  a reduction in the size of the Scottish Parliament as well) required further legislation to ‘decouple’ the number of MSPs from the number of MPs.  (Decoupling has already happened for Wales, as part of the abortive plans to reduce the size of the Commons.)

Wales cannot expect to maintain a privileged position at UK level if devolved powers are to be extended.  Carwyn Jones is trying to have his cake and east it.

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Filed under Courts and legal issues, Wales, Westminster, Whitehall