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Public Law analysis: The UK’s system of intergovernmental relations (IGR) is largely non-statutory. The coronavirus (COVID-19) pandemic and Brexit have required rapid governmental responses to evolving complex situations. This has highlighted both strengths and weaknesses in the UK’s IGR. David Torrance, researcher at the House of Commons Library, specialising in devolution and the constitution, looks at the main features of IGR and challenges which might arise if the UK government introduces an Internal Market Bill later in 2020.
Since devolution to Scotland, Wales and Northern Ireland in 1999, intergovernmental relations have formed an important part of the UK’s territorial constitution. They fulfil two main functions: resolving disputes between the UK government and the three devolved administrations; and facilitating joint decision-making where two or more administrations have overlapping competences or responsibilities.
The political and institutional structures that underpin those relations, however, have been criticised. The devolved governments have been particularly critical.
Concerns include the lack of a statutory framework, the process for resolving disputes, and too many decision-making powers resting with Westminster.
A Cabinet Office-led review of IGR is ongoing. The Commons Public Administration and Constitutional Affairs Committee has noted the ‘growing consensus that the current UK inter‐governmental relations mechanisms are not fit for purpose’. Academics have advocated clearer principles, procedures and practices to help mediate (if not prevent) territorial disputes when they arise.
Formal IGR mechanisms, such as the Joint Ministerial Committee have been side-lined during the coronavirus pandemic. Some commentators noted that relations between the UK’s four governments initially became more co-operative. A joint action plan was agreed in early March, while the Coronavirus Act 2020, passed on 25 March, created emergency powers with clauses tailored to each devolved administration.
The First Ministers of Scotland, Wales and Northern Ireland also sit alongside the Prime Minister on COBRA, the national emergencies committee, while the devolved administrations are involved in the Scientific Advisory Group for Emergencies (SAGE). ‘We’ve made our way through the coronavirus crisis patching together arrangements as we go along’, Welsh First Minister Mark Drakeford has observed, ‘rather than have a set of routine arrangements that we are all used to’
As devolved administrations have diverged from London in easing their respective lockdowns, IGR have been less harmonious. On 8 July 2020, the Scottish, Welsh and Northern Irish finance ministers called on the Chancellor to loosen the Treasury’s rules on how their money could be spent, while on 12 July 2020, Scotland’s First Minister Nicola Sturgeon said she had not ruled out requiring English people arriving in Scotland to quarantine for two weeks.
Even before the pandemic, IGR had come under strain because of Brexit. The UK formally left the EU on 31 January 2020 and entered a transition period, which is due to expire on 31 December 2020. As a result, the UK and devolved governments have agreed that a number of ‘common frameworks’ will be needed to avoid significant policy divergence between different parts of the UK where that would be undesirable.
Newspaper reports suggest a white paper on an Internal Market Bill will be published in the next few weeks. The UK government is planning to legislate in the autumn. According to the Financial Times (FT), this will include provisions for a mutual recognition regime (requiring standards in one part of the UK to be automatically accepted in others) and a new external body to determine if laws from the devolved legislatures are consistent with the internal market. The same newspaper has reported that Westminster control over State aid will also form part of the Bill.
The Scottish government has expressed concerns about the proposed legislation. Mike Russell, the Scottish government’s Constitution Secretary, wrote to Michael Gove, the Chancellor of the Duchy of Lancaster. In the letter, he said such legislation would undermine ongoing work on common frameworks. The Scottish government is particularly concerned that the UK Government might force the devolved administrations to accept new standards on food, the environment and animal welfare which form part of future UK trade agreements. Elsewhere, Mr Russell said the ‘relationship between the Scottish and UK governments has never been so bad’.
Mr Russell has warned that the Scottish Government would ‘refuse to accept any external supervisory role over our legislation in devolved areas and will not operate any system that forces us to accept lower standards than those we presently enjoy’.
He also told the FT that the UK government would have to ‘go to court to enforce implementation of any Internal Market legislation.
The UKSC deals with legal disputes involving ‘devolution issues’. This includes challenges to the action of a devolved institution for acting ultra vires, or beyond its legal competence. Food safety, agriculture and many aspects of the environment are devolved matters, but media reports suggest the UK government wants the final say on matters previously determined by the EU in Brussels.
The UK government has told the Guardian that it will ‘continue to seek a shared approach to the UK internal market with the devolved administrations. Unfortunately, however, the Scottish government voluntarily withdrew from this piece of work over a year ago. We will continue to engage with all three devolved administrations on how best we can bring people together and protect businesses throughout the UK.’
Academics believe this is evidence of Conservative Party politicians taking a more aggressive approach to devolution and IGR. The coronavirus pandemic has highlighted the extent to which the devolved legislatures can diverge from Westminster.
House of Commons Library—Intergovernmental relations in the United Kingdom, 24 July 2018
By David Torrance, researcher at the House of Commons Library, specialising in devolution and the constitution.
First published as ‘Intergovernmental relations in the age of coronavirus and Brexit’ by the House of Commons Library on 13 July 2020. Republished with permission.
Further information can be found at: House of Commons Library.
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