Intergovernmental relations within the UK

On 18 January 2024, the House of Lords will debate the following motion:

The Earl of Kinnoull (Crossbench) to move that this House takes note of intergovernmental relations within the United Kingdom.

1. Intergovernmental relations structures

‘Intergovernmental relations’ (IGR) refers to the conduct of the relationship between the UK government and the Scottish government, the Welsh government and the Northern Ireland executive. It covers contacts and engagement between ministers and officials in the UK government and in the devolved administrations.

1.1 Three tiers of engagement

A new structure for IGR was established in January 2022 following a ‘Review of intergovernmental relations’ undertaken jointly by the UK government and the devolved administrations. The review set out new working arrangements for IGR, to which all four administrations agreed. The review confirmed that intergovernmental decisions would “continue to work on the basis of agreement by consensus”. It also set out a “clear and agreed” process for resolving disputes.

These structures and processes are non-statutory and are to be kept under review. Overall accountability for IGR continues to sit with the prime minister, the first ministers of Scotland and Wales, and the first and deputy first minister of Northern Ireland. In contrast with the previous IGR arrangements, engagement within this structure is to take place regularly and not just “when needed”. The IGR structure consists of three tiers:

• Top tier: the prime minister and Heads of Devolved Governments Council (the council). IGR is overseen by the council, with the two lower tiers accountable to this forum.
• Middle tier: the Interministerial Standing Committee (IMSC) which considers cross-cutting issues; the Finance Interministerial Standing Committee (F:ISC); and additional time-limited committees.
• Lowest tier: interministerial groups (IMGs) on specific policy areas.

The review said that these arrangements would:

[…] provide for ambitious and effective working, to support our COVID recovery, tackle the climate change crisis and inequalities, and deliver sustainable growth. They are 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 their legislatures.

The new system will provide a positive basis for productive relations, facilitating dialogue where views are aligned and resolution mechanisms where they are not. The review also introduces a new era for IGR with improved reporting on intergovernmental activity, providing greater transparency, accountability and scrutiny from each government’s respective legislatures.^[1]

The review framed the arrangements around the following five principles:

• maintaining positive and constructive relations, based on mutual respect for the responsibilities of the governments and their shared role in the governance of the UK
• building and maintaining trust, based on effective communication
• sharing information and respecting confidentiality
• promoting understanding of, and accountability for, their intergovernmental activity
• resolving disputes according to a clear and agreed process^[2]

The review also explained that the arrangements would sit within, and not change, the current constitutional and statutory arrangements. It said they:

[…] are drafted on the basis of the current constitutional arrangements, whilst not precluding constitutional developments in the future. They provide a statement of political intent, but are not intended to create new, or override existing, legal relations or obligations, or to be justiciable. Nothing within them should be construed as conflicting with the Belfast/Good Friday Agreement.^[3]

Before the review, intergovernmental relations were conducted according to principles set out in a memorandum of understanding (MOU) between the UK government and devolved governments. The MOU was first published in 1999, following the 1998 devolution acts, and last updated in October 2013.^[4] More details about the previous system are given in the House of Commons Library briefing on ‘Intergovernmental relations in the United Kingdom’ (17 November 2023).

1.2 Intergovernmental relations secretariat

The three-tier structure is supported by an intergovernmental relations secretariat, which was also established by the review. The secretariat is accountable at all times to the council, rather than to individual governments.^[5] It serves all four governments equally and acts impartially in accordance with guidance, rules and processes jointly agreed by the council. The council has delegated authority to the secretariat and senior officials to deal with day-to-day matters, with ministers retaining ultimate responsibility and accountability to their legislatures. The secretariat has oversight functions for council meetings, such as determining the date, agenda and location, compiling and commissioning papers, reporting on the outcomes, drafting minutes and sharing joint communiques. It has a similar role in relation to the IMSC, with delegated authority to act on some IMSC matters and an oversight role for meetings. The F:ISC is supported by a joint secretariat consisting of representatives from the departments of each minister on the committee. IMGs are supported by their own secretariats on a day-to-day basis, but the IGR secretariat maintains a record of engagement with IMGs, provides support in establishing new IMGs and assists with escalating matters from the IMG tier to the IMSC tier.

1.3 Dispute resolution process

The IGR secretariat also has a role in the dispute resolution process that was established as part of the IGR review. The review stated that all the governments were “committed to promoting collaboration and the avoidance of disagreements”, facilitated by the new IGR machinery.^[6] The review set out a dispute resolution process, although it stated that it should be “seen as part of a much wider system of active IGR, and as a process of last resort”.

Under the dispute resolution process, any government may refer a disagreement to the IGR secretariat as a dispute. However, this can only happen after due and full consideration has been given at portfolio level (including F:ISC regular engagement), the disagreement cannot be resolved at portfolio level, and the disagreement has significant implications for the relationship between two or more governments. The review stated that this would include where governments disagree about the interpretation of matters governed by intergovernmental agreements, rules or procedures, including common framework agreements.^[7] It would be without prejudice to the legal provisions within the devolution settlements that govern matters relating to legislative competence.

There are three stages of escalation within the dispute resolution process. First, the IGR secretariat considers the dispute, assessing whether it meets all the criteria to be escalated to the next stage. If it does, the second stage is for the dispute to proceed to consideration by relevant ministers at the IMSC or F:ISC, at a meeting chaired by a minister not party to the dispute or by an independent third party. If a resolution is not reached, the dispute is escalated to the third stage, for consideration by the council. At this stage, non-binding third-party advice or mediation should be sought unless all parties to the dispute agree not to do so. The council must then consider the dispute and any third-party advice within a month. The IGR secretariat reports on the outcome of the dispute at the final escalation stage. The report must be laid before each legislature. If governments reach a stage in the process where they are unable to reach a resolution and progress the dispute further, each government must make a statement to their respective legislatures setting out the circumstances for the failure to reach a solution.

1.4 Ministerial responsibility within UK government

The prime minister is also the minister for the union. In this role, he “works to ensure that all of government is acting on behalf of the entire United Kingdom: England, Northern Ireland, Scotland, and Wales”.^[8] The prime minister chairs the Domestic and Economic Affairs (Union) Committee, which is a cabinet committee.^[9] The committee’s remit is “to consider matters relating to the union of the United Kingdom”. It is attended by the deputy prime minister, the secretary of state for levelling up, housing and communities and minister for intergovernmental relations, the chief secretary to the Treasury and the secretaries of state for Scotland, Wales and Northern Ireland.

Michael Gove is both the secretary of state for levelling up, housing and communities and the minister for intergovernmental relations.^[10] The government announced in May 2023 that the UK governance team was formally moving from the Cabinet Office into the union and devolution team in the Department for Levelling Up, Housing and Communities (DLUHC).^[11] The government said this would consolidate matters relating to intergovernmental relations, including common frameworks, under the secretary of state for levelling up, housing and communities as the minister for intergovernmental relations.

2. Intergovernmental relations activity

The draft terms of reference for the Heads of Devolved Governments Council said that the council would meet at least annually.^[12] The inaugural meeting took place in November 2022.^[13] A further meeting does not appear to have taken place, based on the information made available about intergovernmental engagement by the Cabinet Office and the DLUHC.^[14]

The IMSC has met five times since March 2022, most recently in October 2023.^[15] At that meeting, ministers discussed joint working on cost-of-living workstreams; the situation in Israel and Gaza; international development; how to ensure international issues are considered appropriately in the IGR system; the legislative process and the application of the Sewel convention; UK-wide work on creating a smokefree generation; the creation of the IGR Secretariat; and proposals in England and Wales and (separately) in Scotland to ban XL Bully dogs.^[16]

The F:ISC has also met five times since March 2022, most recently in September 2023.^[17] At that meeting, finance ministers discussed economic and fiscal priorities in light of the UK government’s upcoming autumn statement, challenges around reinforced autoclaved concrete (RAAC), the Scottish government’s fiscal framework review, and energy security.^[18]

Numerous IMG meetings also took place throughout 2023. The DLUHC has published data covering the first three quarters of the year.^[19] Table 1 below shows the IMG meetings that took place during this period.

Table 1: IMG meetings, Q1 to Q3 2023

Source: Department for Levelling Up, Housing and Communities, ‘Interactive transparency report dashboard for quarter 1, quarter 2 and quarter 3 of 2023’, updated 19 December 2023.

The DLHUC publishes quarterly and annual transparency reports that contain further data and overviews of IGR activity.^[20]

3. How are intergovernmental relations working?

3.1 UK government view

When the conclusions of the IGR review were published in January 2022, Michael Gove, minister for intergovernmental relations, described it as a “landmark agreement” that would “build on the incredible amount of collaboration already taking place between the UK government and the devolved administrations”.^[21] In September 2023, the UK government said that the “need for effective intergovernmental relations between the government and the devolved administrations has never been greater”.^[22] It believed this was demonstrated by events such as Brexit, the Covid-19 pandemic and the conflict in Ukraine.

The UK government pointed to a number of projects and policies it had delivered jointly with the devolved administrations as evidence of the collaborative working principles set out in the IGR review.^[23] These included freeports, investment zones, city region and growth deals, intergovernmental discussions through multiple channels during the Covid-19 pandemic, and events to mark the death of Queen Elizabeth II.

In terms of implementing the IGR review, the UK government said the focus had been on “embedding a more systematic approach to engagement”.^[24] It emphasised that all four governments had a joint responsibility for “upholding the spirit and content of the IGR structures and ensuring productive intergovernmental relations”. It therefore believed the “continued success” of intergovernmental meetings would be “dependent on all parties remaining fully engaged and involved in the process”. It said the establishment of the IGR Secretariat in 2023 would help support this. The UK government said that as the new IGR system matured, “focus is shifting to improving the quality and level of engagement”.

3.2 Scottish government view

In evidence to the House of Commons Scottish Affairs Committee in September 2023, the Scottish government agreed that there had been some recent examples of “practical and constructive engagement” between the Scottish and UK governments.^[25] It cited examples such as engagement on Covid, supporting displaced Ukrainians, and the agreement reached to update the Scottish government’s fiscal framework, giving Scotland greater budget flexibility and borrowing powers. It described these as “examples of what can be achieved when parties adhere to the principles set out in the IGR review”.

However, the Scottish government said that overall it was “very concerned by developments since 2016” in intergovernmental relations. It argued that since Brexit, the UK government had been increasingly intervening in devolved policy matters and there had been an “erosion of the protections provided to devolved institutions, especially the Sewel convention”. This is the convention that the UK Parliament does not normally legislate in areas of devolved competence without the consent of the relevant devolved legislature.^[26] The Supreme Court has concluded that the convention does not give rise to a legally enforceable obligation.^[27] In recent years, the UK Parliament has passed a number of acts without the consent of one or more devolved legislatures, including the European Union (Withdrawal) Act 2018, the European Union (Withdrawal Agreement) Act 2020, the United Kingdom Internal Market Act 2020, the European Union (Future Relationship) Act 2020 and the Retained EU Law (Revocation and Reform) Act 2023.

The Scottish government identified the United Kingdom Internal Market Act 2020 in particular as embodying “many of the wider challenges we face in establishing more equitable and sustainable IGR”.^[28] This legislation concerned enshrining ‘market access principles’ of mutual recognition and non-discrimination. In other words, while each government of the UK can regulate goods and services in its part of the UK, it cannot prohibit the sale of goods in its part of the UK that comply with the applicable regulations in the part of the UK where they are produced. Equally, it cannot regulate to discriminate against goods from another part of the UK. The Scottish and Welsh governments argued during the passage of the act that this would undermine the devolution settlement.^[29] Neither the Scottish Parliament nor the Welsh Senedd consented to the act. In its recent evidence to the House of Commons Scottish Affairs Committee, the Scottish government said the act “undermined preceding collaborative efforts to establish agreed ways of working through common frameworks”. It accused UK ministers of deploying the act to “undermine agreed processes”, as with Scotland’s deposit return scheme.^[30]

The Scottish government welcomed in principle the outcome of the IGR review. It said the review’s conclusions “contained some ostensible practical improvements to the structures and processes that support IGR” which could create the conditions for collaboration that was “more respectful of reserved/devolved responsibilities”.^[31] However, it suggested that in practice, implementation of the proposals had been disrupted by events such as the absence of ministers in Northern Ireland since 2022, and reshuffles in the UK government in summer and autumn 2022. It therefore argued more time was needed to bed in the new machinery. It assessed the new dispute resolution process contained “crucial elements which would constitute improvements over the previous process”, but it had not yet been fully tested. It said issues that had arisen had so far been dealt with through the principle of dispute avoidance where possible and informal escalation.

Overall, the Scottish government concluded that while the new IGR arrangements offered the prospect of improvement, they would “not deliver the step change in attitude and behaviour from the UK government that is needed if there is to be a genuine improvement in intergovernmental relations”.^[32] It argued the UK government needed to show it was “capable of delivering the goodwill and trust for improved intergovernmental relations” and that processes “can only be effective if they are applied with good faith and integrity by all parties”.

3.3 Welsh government view

The Welsh government reported to the Senedd in July 2023 on intergovernmental relations between April 2021 and March 2023.^[33] It took a similar view to that of the Scottish government. It said that:

There have been areas in which constructive joint work and dialogue has been possible with the UK government, for example in relation to aspects of responding to the Covid-19 pandemic, and in relation to Ukraine.

However, the UK government’s attempts to undermine the devolution settlement and its continued disrespect for the Welsh government and the Senedd during much of this period has impaired intergovernmental working and damaged the union of the United Kingdom. The UK government’s shared prosperity fund and its repeated breaches of the Sewel convention are particular illustrations of this.

However, more recently, the agreement reached in late March [2023] to develop two freeports in Wales shows what is possible when the UK government seeks to work openly and jointly.^[34]

The Welsh government said that the IGR review in January 2022 was followed by “positive early indications of improvements, utilising the robust intergovernmental machinery collectively developed by the UK government and the devolved governments”.^[35] However, like the Scottish government, the Welsh government believed that “progress and momentum in implementing the new ways of working and mechanisms agreed as part of the review were slower than anticipated”. It said this was because of “the instability of the UK government over this period and frequent UK ministerial changes”. The Welsh government said it would continue to work towards “a reformed and strengthened UK” using the structures and mechanisms arising from the review. However, it argued that “progress is only possible where the behaviours and mindset of the UK government facilitate this”.

The Welsh government expressed a hope that in the longer term, the Independent Commission on the Constitutional Future of Wales would “provide an important foundation for constitutional change and for improved intergovernmental relations”.^[36] The commission was appointed by the Welsh government in 2021.^[37] One of its objectives is to “consider and develop options for fundamental reform of the constitutional structures of the United Kingdom, in which Wales remains an integral part”.^[38]

In its interim report published in December 2022, the commission described the “fragility of intergovernmental relations” as one of the “pressure points” of devolution.^[39] It said that the machinery for IGR “operates at the discretion of the UK government”, whose “reduced engagement in recent years has coincided with its willingness to override conventions”. The commission said this enabled “unilateral decision-making which does not contribute to the best outcome for citizens”. The commission said there were “good intentions” behind the outcome of the IGR review, but that it “did not resolve all points of tension”. It argued that “developments associated with the UK IMA [Internal Market Act] and the shared prosperity fund […] suggest that the ‘respect agenda’ no longer prevails”.^[40] The commission intended to take further evidence on the progress of IGR, evaluating whether recent practice met the intentions set out in the review and whether the new machinery was being used to operate a partnership approach. The commission was due to publish its final report and recommendations by the end of 2023.^[41]

3.4 Northern Ireland: lack of executive to participate in intergovernmental relations

Northern Ireland’s involvement in the new IGR structures has been impacted by the absence of a fully functioning executive or assembly since February 2022, following the collapse of power-sharing over the DUP’s objections to the Northern Ireland Protocol.^[42] Caretaker ministers remained in post until October 2022. Until a new executive is formed, Northern Ireland senior civil servants can exercise departmental functions in the absence of ministers if they are satisfied it is in the public interest.^[43] As there has been no Northern Ireland executive in place since mid-February 2022, senior civil servants have been attending IGR meetings in the absence of ministerial representation.^[44] Their attendance at ministerial meetings is in an observational capacity.^[45]

Recent efforts aimed at restoring Stormont—including a UK government offer of a £3bn financial package for Northern Ireland to be made available to an incoming executive—have not to date resulted in the formation of a new executive.^[46] If no executive is formed before 19 January 2024, Chris Heaton-Harris will be under a statutory obligation to call a new Northern Ireland Assembly election, unless legislation is passed to extend the executive formation deadline again.^[47]

3.5 Parliamentary committees’ views

Parliamentary committees in the UK Parliament and devolved legislatures have commented on the operation of intergovernmental relations.

Interparliamentary Forum

The Interparliamentary Forum has raised concerns about parliamentary scrutiny of common frameworks in the context of intergovernmental relations. The forum brings together chairs and members from relevant committees in the House of Commons, House of Lords and the devolved legislatures to scrutinise intergovernmental relations and post-Brexit constitutional arrangements.^[48] At its most recent meeting, in October 2023, the forum discussed “the ongoing challenges of intergovernmental relations including operation of the UK Internal Market Act, and the scrutiny of intergovernmental working”.^[49] It said there was an “increased need for effective intergovernmental working in managing the regulatory environment across the UK outside of the EU” and that this “continues to raise substantial challenges in reaching agreement between the governments of the UK”. It said there had been some progress in addressing these challenges through increased transparency in the reporting of intergovernmental activity. However, concerns had been raised in all the legislatures in relation to the transparency and future scrutiny of common frameworks.

The Interparliamentary Forum noted that while there was an intergovernmental agreement for an annual report on each framework once it was fully implemented, there had been no reporting on the frameworks that are currently operating provisionally.^[50] The forum wrote to Michael Gove in November 2023 to request annual reports on the provisional frameworks.^[51]

In response, Mr Gove said he agreed that “the management of the regulatory picture across the UK needs good intergovernmental working, given that a substantial part of the regulatory portfolio is within devolved competence”.^[52] However, he stated that “no one government is in a position to respond to a recommendation for a change to the [common frameworks] programme without the consensus of all parties”. He explained that a decision to report to legislatures on the provisional common frameworks would require the agreement of ministers in the UK government and all the devolved administrations, but the Northern Ireland executive was not currently able to provide this. He said individual administrations could update their own legislatures on the operation of provisional common frameworks through their usual processes.

House of Lords Common Frameworks Scrutiny Committee

The House of Lords Common Frameworks Scrutiny Committee, in its final reflections before it ceased at the end of 2023, also considered the scrutiny of common frameworks in the context of relations between governments within the UK.^[53] The committee said common frameworks had been “an important mechanism for reaching consensus on policy areas for which powers returned to the UK” and “robust, innovative and unique sources of collaboration between the UK government and the devolved governments”. However, the committee also said they represented an “unfulfilled opportunity” as the programme had become “process rather than policy driven”. It argued there had been a “failure of leadership” at the top of government in recognising the contribution common frameworks could make to the resilience of the union.

In response, Michael Gove said that while ideally more common frameworks would have been fully implemented by now, he was pleased that those which were currently operational were being used as the basis for intergovernmental policy design and implementation.^[54] Mr Gove rejected the committee’s view about a failure of leadership, although he acknowledged that implementation had been slower than envisaged because of the absence of a Northern Ireland executive to formally agree the frameworks post-scrutiny. He said that the implementation of the IGR review and the new structures had “created a better overall context in which frameworks operate”.

Scottish Parliament Constitution, Europe, External Affairs and Culture Committee

The Scottish Parliament Constitution, Europe, External Affairs and Culture (CEEAC) Committee looked at intergovernmental relations in its report on how devolution is changing since Brexit, published in October 2023.^[55] The committee concluded that there is “now a complex landscape of intergovernmental mechanisms, which has grown incrementally rather than following from a clear constitutional design”.^[56] It said this landscape includes:

• new IGR structures and ways of working that replace those in the MOU
• other elements of the MOU which have not been reviewed, such as the concordat on international relations
• common frameworks definitions and principles (as agreed by the JMC(EN) in 2017)
• individual common frameworks
• a number of consent/consult mechanisms related to the use of delegated powers by UK ministers in devolved areas

The CEEAC committee’s view was that there was “a lack of clarity and consistency with regards to how each of these mechanisms work together”. It said that because the IGR review related only to new IGR structures and ways of working, there “does not appear to be any intergovernmental agreements in some areas of the new post-EU constitutional landscape”, for instance in relation to UK ministers using delegated powers in devolved areas. The committee called for a new MOU between the UK government and the devolved governments to “specifically address how devolution now works outside of the EU and based on a clear constitutional design including consideration of the principles of subsidiarity and proportionality”.^[57]

Welsh Senedd Legislation, Justice and Constitution Committee

The Welsh Senedd Legislation, Justice and Constitution Committee looked at intergovernmental relations as part of its inquiry into UK-EU governance, published in November 2023.^[58] The committee’s view was that “intergovernmental relations and engagement on UK-EU relations have declined post-Brexit but could easily be improved”.^[59] It made several recommendations to this end, including:^[60]

• The governments of the UK should urgently undertake a review of the principles and terms upon which the devolved governments are engaged in UK-EU relations. This should result in the adoption of new terms of reference for the IMG on UK-EU relations.
• The IMG on UK-EU relations should adopt a new MOU on the role of the devolved governments in UK-EU relations in order to ensure a clear understanding, and consistent engagement, by different UK and devolved government departments.
• The IMG on UK-EU relations should provide for more meaningful engagement by ensuring that meetings take place sufficiently in advance of meetings of the Joint Committee of the Withdrawal Agreement and the Partnership Council of the Trade and Cooperation Agreement to allow for full devolved input.
• Through the IMSC, the governments of the UK should set out an agreed position for how the “complex” governance structures in the UK post-Brexit on UK-EU matters interact and work together.

House of Commons Scottish Affairs Committee

The House of Commons Scottish Affairs Committee is currently running an inquiry into intergovernmental relations 25 years since the Scotland Act 1998.^[61]

4. Read more

4.1 Intergovernmental relations

• House of Commons Library, ‘Intergovernmental relations in the United Kingdom’, 17 November 2023
• House of Lords Library, ‘‘Common frameworks: An unfulfilled opportunity?’: Common Frameworks Scrutiny Committee report’, 1 February 2023

4.2 Devolution and the union

• House of Lords Library, ‘King’s Speech 2023: Devolved affairs’, 1 November 2023
• House of Lords Library, ‘Implementing the Dunlop review into the UK’s union capability’, 20 February 2023
• House of Lords Library, ‘Building a stronger union: House of Lords Constitution Committee’, 9 January 2023
• House of Lords Library, ‘Union of the United Kingdom: Under stress?’, 16 June 2022

4.3 Scotland

• House of Commons Library, ‘The secretary of state’s veto and the Gender Recognition Reform (Scotland) Bill’, 11 December 2023
• House of Commons Library, ‘Devolution in Scotland: “The settled will”?’, 19 November 2023

4.4 Wales

• House of Commons Library, ‘Devolution in Wales: “A process, not an event”’, 31 July 2023

4.5 Northern Ireland

• House of Commons Library, ‘Developments in Northern Ireland 2022–23’, 6 December 2023
• House of Commons Library, ‘Devolution in Northern Ireland’, 17 November 2023

Cover image by Peggy and Marco Lachmann-Anke from Pixabay.