By Joanna George
Research Associate, University of Cambridge
For almost twenty years, UK intergovernmental relations (’IGR’) held an unassuming and largely invisible constitutional role. In 2016 that changed with the need to accommodate the very visible diverging views and desires of each component part of the UK in response to the Brexit referendum result.
As asymmetrical devolution arrangements have become rooted in the UK’s constitutional framework, the nature and manner of IGR over the coming years will shape how the post-Brexit legal and political landscape operates. It will also determine how well (and what kind) of Union will crystallise in the absence of the common EU legal framework that acted as a form of ‘glue’ to maintain and unite the UK together.
Will the new model for IGR as proposed in the recently published joint Review of Intergovernmental Relations provide a ‘significant constitutional step forward’? Can this alone work without greater trust, cooperation, and partnership between the four governments of the UK? Would a bottom-up approach to legislating create a more engaged and energised Union?
The early years of intergovernmental relations – a work in progress
Prior to devolution, IGR as we now know it did not exist. This is because the UK had a very centralised and single system of government operating from the UK Parliament in Westminster. Devolution changed this by creating governments in Wales, Scotland, and Northern Ireland. Subsequently, a new set of relationships emerged between the devolved governments and with the UK Government. In response, a Joint Ministerial Committee (JMC) was created in 1999 which was a formal forum for ministers from the UK and devolved governments to review the workings of devolution and areas of common interest.
Despite this, the main JMC forum (known as JMC Plenary) did not meet on a regular basis during the first decade of devolution. This was largely due to the political dynamics of devolution. The Labour Party was the architect of devolution in Scotland and Wales and helped reintroduce devolution in Northern Ireland. It was also the political party in power (either as a single government or coalition government) in the UK Government, Scottish Government and Welsh Government. Simultaneously, the Labour Party government helped broker the Good Friday Agreement in Northern Ireland. This meant that everyday IGR was mostly managed through informal political channels and existing relationships between senior figures in each government instead of through formal meetings.
The exception to this was convening to coordinate in advance of European Council meetings when the UK was a member of the EU, and the UK Government represented all four governments. This was referred to as JMC Europe. But otherwise, the early years of IGR was criticised for its lack of structure and for relying too much on the goodwill of the political actors of the day who would inevitably be replaced by politicians from different political parties in the future. Indeed, it was acknowledged by the Justice Commons Committee at the time that strong IGR was one of the reasons for JMC Plenary meetings lapsing between 2002 and 2008.
The nature of IGR changed in 2007 with the creation of the SNP (Scottish National Party) government in Scotland and the 2010 Conservative-Liberal Democrat coalition in the UK Government. The informal methods of conducting IGR were no longer effective, but little changed to IGR arrangements. During this time, the previous political goodwill between the four governments started to dissipate, with the first signs of declining trust and respect becoming apparent in the run up to the 2014 Scottish independence referendum.
Intergovernmental relations post-Brexit (2016 to 2022)
Brexit has challenged the UK’s territorial governance. As a result, this has incentivised IGR to function better for the benefit of all four governments. Since 2017, the UK Government, Scottish Government, Welsh Government, and the Northern Ireland Executive have been working together to develop agreements which cover a range of policy areas where powers have returned from the EU and intersect with devolved competence.
Yet, as highlighted in a previous post, the JMC committees created to look at Brexit negotiations – of which the UK Government was the representative negotiator – have come under criticism, most notably for meeting sporadically, lacking transparency over proceedings, and for failing to take account of the views of the devolved governments.
Another criticism has been the top-down manner (whereby the UK Government instigated irregular meetings) in which IGR have taken place, with the decisions of the JMC not being binding on the UK Government. In March 2020 all three devolved governments issued a joint call for ‘a meaningful, comprehensive and transparent process for the devolved governments to influence the UK’s negotiating position’ but this call went unanswered by the UK Government ahead of EU negotiations. The limited nature of the JMC’s role, which focused on consultation rather than consensual decision-making, and the inadequacy of existing dispute resolution arrangements, was also widely criticised. This was particularly problematic during the Brexit negotiation period.
Despite these criticisms, there were promising signs of crucial and beneficial progress in IGR during this period. Firstly, the initiation of Common Frameworks – which is currently the subject of an inquiry by the House of Lords Common Frameworks Scrutiny Committee – to prevent or limit divergence in policy areas that was previously governed by a common legal framework under EU law was seen as a progressive step forward, even if they require further clarification, especially in relation to the operation of the Northern Ireland Protocol.
Secondly, meetings between the UK and devolved governments over Welsh and Scottish objections to the 2018 EU Withdrawal Bill helped facilitate negotiations that subsequently led to an agreement being reached with the Welsh Government (but not the Scottish Government). Embracing a spirit of cooperation can lead to more constructive relations and foster greater willingness to achieve shared objectives. An example of this is the recent agreement across all four governments that for the purpose of tackling plastic pollution, the UK Internal Market Act 2020 will not apply to the selling of single-use plastics in Scotland where it is banned.
Review of intergovernmental relations and future dynamics
A Review of Intergovernmental Relations conducted jointly by the UK Government and the devolved governments in Scotland, Wales, and Northern Ireland was finally published in January 2022, almost four years after it was first commissioned. As discussed at length in a previous post, the review stated that the new IGR structures were built on ‘principles of mutual respect and trust, respecting the reserved powers of the UK government and Parliament and the devolved competences of the Scottish government, Welsh government, Northern Ireland executive and the legislatures’.
In contrast with the previous IGR arrangements, engagement within the new mechanisms and structures is to take place regularly and not just when the occasion calls for it. This is important as it is more likely to nurture a culture of consensus-oriented action as opposed to reacting to crisis events and points of policy tension. It could also provide an open channel for conversations on reserved issues that have the potential to impact devolved matters, such as the negotiation of international trade deals.
The UK’s departure from the EU has forced the four governments to constitutionally consult and look introspectively. Honing collaborative, trustworthy, and transparent IGR will be key to keeping all the UK’s component parts in harmony and avoiding constitutional conflict, both within the courts and political sphere. This is especially pertinent at present in Northern Ireland where the DUP (Democratic Unionist Party) have resisted calls to resume the Northern Ireland Assembly unless significant changes are made to the Northern Ireland Protocol.
Calls for a united Ireland and independence for Scotland and Wales continue to persist in the political sphere and become louder whenever Westminster is not willing to compromise or engage in devolved matters. Only time will tell if the functioning of the new IGR mechanisms and structures will prove effective, but the ‘bottom-up’ process that gave impetus to the successes of devolution would be worth learning from in the interim.
- The Political Quarterly: ‘Intergovernmental Relations in the UK: Time for a Radical Overhaul?’
- Institute for Government: ‘Devolution: Joint Ministerial Committee’
- House of Commons Library: ‘Intergovernmental relations in the United Kingdom’