Introduction
On 25 October 2018 the Interparliamentary Forum on Brexit (“the Forum”) is meeting at the Assembly. The Forum was established in October 2017. It brings together Chairs, Conveners and representatives of Committees scrutinising Brexit-related issues in the National Assembly for Wales, Scottish Parliament, House of Commons and House of Lords in order to discuss and scrutinise the process of the UK’s withdrawal from the European Union. Officials from the Northern Ireland Assembly currently attend as observers. A statement from its most recent meeting held on 21 June 2018 can be seen here.
Since the last meeting of the Forum the House of Commons Public Administration and Constitutional Affairs Committee (PACAC) published their Report on Devolution and Exiting the EU: reconciling differences and building strong relationships, in July 2018.
The Report invites the Clerks of the four parliaments and assemblies to instruct parliamentary officials to work up a joint proposal for an inter-parliamentary body to scrutinise UK Common Frameworks (discussed below). These proposals should address issues such as the size and composition of the body, how frequently it should meet, what its main objectives and terms of references should be and what the potential cost of the body would be. It suggests the proposals should be presented to the Forum which would then seek the endorsement of the Speakers and Presiding officers of the UK Parliaments.
Recommendations 5-8 of the Assembly’s Constitutional and Legislative Affairs Committee’s (CLAC) report, UK Governance post-Brexit, make similar recommendations regarding inter-parliamentary working. However, it specifies a Speakers’ Conference and its remit is more general than the emphasis placed on Common Frameworks by the PACAC Report.
PACAC’s Inquiry
The inquiry focused on four main areas:
- the European Union (Withdrawal) Bill;
- the long-term mechanisms that should be put in place for the exercise and distribution of governmental power and authority throughout the UK;
- what the long-term future of devolution in the UK constitutional arrangements should be; and
- how trust and cooperation could be established and maintained among the governments and legislatures of the UK.
The Report recommended that the UK Government should publish a Devolution Policy for the Union. A document setting out the Government’s Devolution Policy for the Union should be issued at the start of every Parliament. Furthermore:
This policy should outline where the constitutional architecture of devolution needs to be buttressed or amended and should, where necessary, provide justification for asymmetry within the devolution settlement. While we accept that asymmetry may be necessary and even preferable within the UK context, the Government should explicitly recognise and be held accountable for representational and institutional asymmetries within the UK political system.
The Report states that the UK Government must recognise that the reserved powers model of devolution means that powers are devolved by default and not conferred by the UK Parliament. This should be set out as the first item of an expanded Memorandum of Understanding on Devolution.
The Committee made several recommendations regarding joint-working in the context of Brexit.
Common Frameworks
Common Frameworks, where competences over a particular matter are devolved and therefore there must be agreement about policy between Whitehall and the devolved Governments, will be an important element of the constitutional architecture once the UK has left the EU. The Report noted that “there is wide acceptance of the necessity and importance of Common Frameworks.”
However, the Report expressed concern that the UK Government does not have a common strategy or policy for how Common Frameworks should operate, and is instead leaving it to different Whitehall departments to develop their own strategies and models. This runs the risk of creating a disparate set of Frameworks with no consistent or coherent rational or operational logic.
It recommends that the UK Government should seek to develop a coherent policy for the establishment, operation and monitoring of Common Frameworks, which acknowledges the need for parliamentary scrutiny of these frameworks. The UK Government should set out a clear set of principles for the governance and operation of Common Frameworks in its Response to the Report.
The Report notes the five-year sunset provision in relation to the frozen EU Frameworks. It recommends that the new systems for discussing, agreeing, monitoring and amending Common Frameworks should be set up as soon as possible so that they will be fully operational before the five-year period is ended. In the short-term, it recommends that either a Joint Ministerial Committee for Common Frameworks be set up or individual Joint Ministerial Committees for departmental areas be established in order that experience of joint decision-making can be built up.
Whitehall’s attitude towards devolution
The Report says “It is clear from the evidence to this inquiry that Whitehall still operates extensively on the basis of a structure and culture which take little account of the realities of devolution in the UK.”
It recommended further training across departments. It recommends that the UK Government should commit to a systematic review, in the year following the UK’s exit from the EU, of how Whitehall is structured and how it relates to the devolved Governments in Scotland, Wales and Northern Ireland. This review should also consider whether the role of the territorial offices in Whitehall and corresponding Secretaries of State are still necessary and, if they are, whether they might be reformed to promote better relations across Whitehall with the devolved Governments.
In April 2018, the Assembly’s Constitution and Legislative Affairs Committee wrote to the Secretary of State for Wales and the Minister for the Constitution regarding its report on UK Governance post-Brexit. It noted that, during the inquiry, many witnesses had highlighted the poor knowledge and understanding of devolution that exists in parts of Whitehall, despite efforts to remedy the situation by successive administrations. The Secretary of State for Wales and Minister for the Constitution provided a joint response to the Committee in May 2018.
Inter-governmental relations: the missing part of devolution?
The Report states that once the UK has left the EU, and UK Common Frameworks are established, the present lack of intergovernmental institutions for the underpinning of trusting relationships and consent will no longer be sustainable. The Report recommends that the UK Government to develop, in conjunction with the devolved Governments, a new system of inter-governmental machinery and ensure it is given a statutory footing.
The new inter-governmental apparatus that emerges from this reform should ideally have an independent secretariat to schedule and organise inter-governmental meetings.
The Report notes the evidence that the JMC(E) has been the most successful and effective form of the JMC. It is important that inter-governmental relations mechanisms have a clearly-defined purpose and are not just arrangements for the airing of grievances. Common Frameworks should if possible be agreed by consensus and, if a consensus cannot be reached, each government should Report the reasons for the failure to agree to their respective legislatures.
These recommendations concur with Recommendations 1,2 and 3 in CLAC’s report on UK Governance post-Brexit.
Inter-parliamentary scrutiny
The Report recommends that in order to allow for effective scrutiny, the Governments of the UK should support changes to Standing Orders and, where necessary, bring forward legislation to allow committees of the UK’s parliaments and assemblies to meet jointly and establish inter-parliamentary committees. To help facilitate joint working and the work of inter-parliamentary committees, members of these committees from across the UK should have easy access to one another’s parliamentary estates for the purposes of committee meetings, assured through the mutual recognition of parliamentary passes.
Article by Alys Thomas, National Assembly for Wales Research Service
