Intergovernmental relations reform: what progress has been made?

Most of the current structures that underpin intergovernmental relations (IGR) between the UK nations developed after devolution in 1998.

The Cabinet Office is currently leading a joint review by the UK Government and the devolved administrations into IGR. Its purpose is to examine whether IGR structures are “fit for purpose”. On 4 July 2019, the UK Government also commissioned Lord Dunlop to conduct an independent assessment of the UK Government’s operations in the areas of devolution and IGR.

On 24 March 2021, the Cabinet Office published a progress update on the joint IGR review together with the Dunlop Review of UK Government Union Capability. The Dunlop review proposed a series of reforms. These included:

  • The appointment of a new ‘Secretary of State for Intergovernmental Constitutional Affairs’.
  • Reforms to the civil service, including devolution teams within government departments located at the “heart” of policy development; more opportunities for loans and secondments between the four administrations; and devolution issues to be central in the training programme.
  • A new UK intergovernmental council to replace the existing Joint Ministerial Committee (JMC), to be supported by an independent secretariat.

In response to the recommendations made in the review, Chancellor of the Duchy of Lancaster Michael Gove stated the UK Government was “keen” to implement policies in line with the review’s proposals. Mr Gove said it was working with the devolved administrations through the joint IGR review to put cooperation on an “even better footing”. He outlined some of the initial reforms:

  • The new Union Strategy Committee, chaired by the Prime Minister.
  • Changes to the civil service training programme to make devolution and the union a focus.
  • Creating a more “geographically dispersed” civil service. This includes moving 22,000 roles from London and the south east of England to the regions and nations of the UK by 2030.

The UK Government’s progress update on the joint IGR review was published alongside the Dunlop review. The update outlined the areas of cooperation that had been agreed and those where consensus had yet to be reached. The four administrations agreed that overall accountability for IGR would remain with the prime minister, the first ministers of Scotland and Wales and the first minister and deputy first minister of Northern Ireland. To meet the objectives of improved collaboration, they concluded a three-tier structure would be most effective. The first two tiers were agreed:

  • Tier 1: Portfolio engagement at official and ministerial level.
  • Middle tier: Engagement on cross-cutting issues by a new interministerial standing committee.

However, there was not consensus on all the proposals for the top tier of engagement. It was agreed that there should be an overarching body that would:

  • Consider policy issues of strategic importance to the whole of the UK.
  • Reach decisions on the strategic direction of IGR by consensus.
  • Act as the final arbiter of any disputes.

No agreement was reached on the name of the body; the proposal for the prime minister or their nominated deputy to host an annual meeting of the group; or for them to chair its meetings.

It was settled that the new structure would be supported by a standing secretariat consisting of officials seconded from all governments. It was also agreed that governments will be accountable to their respective legislatures on IGR.

Discussions on the IGR review are due to resume after the Welsh and Scottish parliamentary elections in May 2021.

Common frameworks: what are the recent developments?

Following the UK’s decision to exit the EU, the European Negotiations sub-committee of the JMC was established. In October 2017, it agreed a set of principles on the need for “common frameworks” on policy areas that had been governed by EU law but which, after the end of the transition period, would be within the areas of competence of the devolved administrations.

The UK, Scottish and Welsh administrations recognised that the transfer of certain policy areas to the devolved administrations could lead to policy differentiation within the UK. The Northern Ireland Executive had dissolved in January 2017 and therefore was not part of these talks.

The three administrations agreed that to prevent or limit divergence across the UK, common frameworks could set “a common UK, or GB, approach”. The framework mechanism would also facilitate agreements on divergence.

Progress on developing common frameworks

In September 2020, the UK Government published a framework analysis that identified 154 potential areas where EU law intersected with the devolved competence of one or more of the devolved administrations. In many of these areas, it was decided that current working arrangements would be sufficient. There are currently frameworks in development in 32 policy areas. The other areas have been marked for ‘no further action’.

The intention was that the common frameworks would be agreed and be fully in place by the end of the transition period, 31 December 2020. However, in a letter to the House of Lords Common Frameworks Scrutiny Committee, Minister for the Constitution and Devolution Chloe Smith stated that by the end of the transition period only three frameworks were provisionally agreed by all governments. Chloe Smith explained that all the administrations had been “challenged” by the coronavirus pandemic, and therefore had prioritised frameworks that would have the most “impact on ‘day one’, meaning 1 January [2021]”.

In addition to the three provisional frameworks that had been published, a further 26 frameworks have been “operating on an interim basis across the UK” since the beginning of 2021, having been signed off by the UK, Scottish and Welsh governments at a provisional level. A full list of the status of the active frameworks, as at March 2021, can be found in annex 4 of the committee’s report. The Cabinet Office publishes updates on the progress of the frameworks on the UK Government website.

Northern Ireland and the common frameworks programme

Between January 2017 and January 2020, Northern Ireland was without a properly functioning executive and assembly. As a result, it was not until 15 June 2020 that the Executive endorsed the common frameworks principles.

According to Bruno Williams, Deputy Director of the UK Frameworks Division at the Cabinet Office, about three-quarters of the active frameworks intersect in some way with the Ireland/Northern Ireland Protocol. Witnesses, such as Emily Miles from the Food Standards Agency, told the House of Lords Common Frameworks Scrutiny Committee that in these areas Northern Ireland would have to adhere to the Protocol ruling and follow the EU rules. Bruno Williams told the committee that officials were looking at the forthcoming EU legislative programme to consider how soon it is “likely” that divergence arising from the Protocol might “manifest itself”, and how that might be managed through frameworks.

Further information on the Northern Ireland/Ireland Protocol can be found in the House of Lords Library briefing: Queen’s Speech 2021: UK-EU relationship.

Parliamentary scrutiny

On 31 March 2021, the House of Lords Common Frameworks Scrutiny Committee published its report: Common Frameworks: Building a Cooperative Union. The committee praised the common frameworks as “innovative and flexible mechanisms” for developing UK-wide policy.

However, the committee identified three key “problems” with the programme:

  • Insufficient opportunity for stakeholder engagement or parliamentary scrutiny.
  • Parliament needed more information to “scrutinise effectively” the framework agreements.
  • The relationship between the frameworks and the Protocol needed clarification.

The committee made several recommendations to address these issues, including:

  • Greater transparency through the publication of framework summaries and an open stakeholder consultation process.
  • Policy changes introduced through the Protocol should be considered by ministers in the same way as divergent policies are considered through the common frameworks mechanism.
  • Frameworks that include a major intersection with the Protocol should include processes for reporting on the divergence and its effects.
  • Ongoing parliamentary scrutiny of the common frameworks. The four administrations should regularly update their legislatures and publish reports.

The committee found that relations between the four administrations of the UK were in a “particularly poor state”. It suggested IGR should be reset using the common frameworks mechanism as a model.

Legislating in devolved areas: what concerns have been raised?

The Internal Market Act 2020 enshrined in law the “market access principles” of mutual recognition and non-discrimination. The intention was to prevent trade barriers within the UK. However, while each government of the UK will be able to regulate goods and services in their part of the UK, not all of that regulation can be applied to goods and services coming from another part of the UK into their own.

During its passage in the UK Parliament, the Scottish and Welsh governments argued the legislation would put constraints on their decision-making powers in devolved areas. Both the Scottish and Welsh parliaments refused ‘legislative consent’. Under the Sewel convention, the UK Parliament would “not normally” legislate in an area of devolved competence without the relevant devolved administration passing a consent motion. The Northern Ireland Assembly did not hold a formal legislative consent vote. In January 2021, the Welsh Government issued a formal request for a judicial review on the Internal Market Act.

In turn, the UK Government has expressed concern about the Scottish Parliament legislating beyond its areas of competence. In April 2021, it asked the UK Supreme Court to decide whether two bills passed by the Scottish Parliament went beyond its legislative competence. They are: the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill; and the European Charter of Local Self-Government (Incorporation) (Scotland) Bill. The UK Government said the legislation could place obligations on UK ministers and, if so, would be beyond the scope of Scotland’s devolved powers.

Scottish independence referendum: what is the UK Government’s position?

Developments in Scotland

The SNP’s manifesto for the Scottish parliamentary elections on 6 May 2021 made a pledge to hold a second independence referendum after the “Covid crisis has passed” but in “good time to equip” the Scottish Parliament with the “powers it needs”.

It has been the party’s policy since 2016 to seek the powers necessary to introduce legislation to hold a second referendum. After the EU referendum result in June 2016, First Minister Nicola Sturgeon suggested that a second referendum was “highly likely”. She said that officials would begin the process to prepare the legislation needed to hold another referendum.

Following the general election in December 2019, at which the SNP won 48 of Scotland’s 59 parliamentary seats, the Scottish Government published Scotland’s Right to Choose: Putting Scotland’s Future in Scotland’s Hands. This set out proposals for a permanent transfer to the Scottish Parliament of the power to hold an independence referendum, either by an order under section 30 of the Scotland Act 1998 or through primary legislation.

On 29 January 2020, the Scottish Parliament voted by 64 to 54 to agree that another referendum should take place. On 22 March 2021, the Scottish Government published its Draft Independence Referendum Bill.

UK Government’s response to calls for an independence referendum

Under the leadership and premiership of Boris Johnson, the Conservative Party and the UK Government respectively have confirmed they are against holding a second independence referendum. The Conservative Party’s 2019 general election manifesto stated it was “opposed” to a second referendum, and stood with the “majority of Scottish people” who did not “want to return to division and uncertainty”.

Following the 2019 election, Nicola Sturgeon wrote to Boris Johnson on the matter. Ms Sturgeon requested that discussions between the two governments begin on the transfer of the power to hold a referendum from Westminster to the Scottish Parliament. Mr Johnson responded that the UK Government would not agree to any request that would lead to further independence referendums.

In January 2021, an official spokesperson for the prime minister was quoted as saying that the UK Government’s view was that holding an independence referendum would go beyond the powers of the Scottish Parliament. It has not said whether it would refer the intended Independence Referendum Bill to the supreme court.

Restoration of devolution in Northern Ireland: what is the status of the deal?

On 9 January 2020, the UK and Irish governments published the text of a deal, New Decade, New Approach, to restore devolved government in Northern Ireland. The Northern Ireland Assembly convened on 11 January 2020.

On 28 April 2021, the First Minister, Arlene Foster, announced that she would resign as the Democratic Unionist Party (DUP) leader on 28 May 2021, and as first minister of the Executive at the end of June. As the largest party of the largest grouping in the Assembly, the DUP will be entitled to nominate a new first minister. A vote will then be held in the Assembly. Under existing rules, once Mrs Foster steps down as first minister, this process will need to be within seven days. The New Decade, New Approach deal contained a commitment to extend the appointment time for a new first minister after a resignation. Legislation is needed to make the change.

UK Government commitments to legislate

The New Decade, New Approach agreement covered various policy issues, including reforms to the Assembly and Executive and processes to deal with the legacy of the Troubles in Northern Ireland. The UK Government made commitments to legislate in several areas to implement the deal. These included:

  • Amendments to the Northern Ireland Act 1998 to extend the appointment of a first minister and deputy first minister, after a resignation or after an assembly election, from seven and 14 days respectively to six weeks in each case. If there is no appointment after this time, parties would have a maximum further 18 weeks to appoint a first or deputy first minister. If no appointment is made, the secretary of state would be required to propose an election date.
  • Legislation within 100 days to complete the implementation of the framework in the Stormont House Agreement for dealing with the legacy of the Troubles in Northern Ireland.
  • Reforms to the Petition of Concern (PoC) mechanism, so that they will only be used in “exceptional circumstances”. The Assembly’s standing orders state that a PoC should be signed by at least 30 members, and no vote may be held until at least one day after it had been presented. Under the reforms, a petition would need to be signed by at least 30 members from two or more parties and would initiate a 14-day period of “consideration”.

Progress on introducing legislation

In March 2021, the UK Government said it would introduce legislation on the reforms to Northern Ireland’s political institutions and the changes to the PoC mechanism when parliamentary time allows. Following Mrs Foster’s announcement that she would be resigning as first minister, a UK Government spokesperson reportedly said that “good progress” was being made with the legislation and would be “brought forward during the second parliamentary session”.

About the UK Government’s policy on addressing legacy issues, the Government has announced that it intends to alter its approach. In March 2020, the Government published its Overseas Operations (Service Personnel and Veterans) Bill. It did not contain provisions on Northern Ireland and legacy prosecutions in relation to the Troubles. In a written statement published alongside the bill, Secretary of State for Northern Ireland Brandon Lewis explained that the Government would “centre” its attention on information recovery and reconciliation. Mr Lewis stated that with the passing of time the “likelihood” of justice was small. It was the Government’s view that it was important to shift its focus to giving information to families about what happened to “their loved ones—while this is still possible”. He said the only cases to proceed to a full police investigation would be those where there was a “realistic” chance of a prosecution.

Mr Lewis stated that Government proposals included establishing an independent body that would oversee and manage both the information recovery and investigative aspects of the legacy system. Legislation on this issue has not yet been published. However, on 1 February 2021, the Government stated it was committed to introducing legislation on this issue “in the coming months”.

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Cover image from Wikimedia.