Devolution formed the centrepiece of the 1997 Labour Government's package of measures aimed at 'modernising' the British constitution.4 Following the territorial elections held in May, 1999, the newly created Scottish Parliament and Welsh Assembly convened in July, and by so doing changed fundamentally the governance system of the UK. Devolution served to shift the locus of British political and administrative power away from the Westminster-Whitehall nexus. Henceforth the territorial capitals in Scotland and Wales would command considerable direct and indirect influence over the devolved economic and social policies and, albeit to a lesser degree, the policies for which competence is reserved to the UK Government. A distinctive feature of the devolution settlement is its asymmetric nature with respect to the powers granted to the administrations in Scotland and Wales. The Scotland Act provided for the establishment of the Scottish Executive and a directly elected legislature - the Scottish Parliament - with competence to pass primary legislation over all devolved policies. In contrast, the Wales Act did not provide for a separate Welsh legislature. Instead, the directly elected Welsh Assembly would have the power to implement and administer those aspects of UK Government legislation devolved to it under the transfer of functions order - essentially the same set of policies as those over which the Scottish Parliament has legislative competence. The executive powers of the Assembly are delegated to the First Minister who is elected by the whole Assembly, who in turn delegates administrative responsibility to a number of Assembly Secretaries who collectively form the Assembly Cabinet.5 Unlike the approach taken to devolution in the 1970s, the current variant identified policies that will remain the prerogative of UK Government (reserved matters6), with all policies not so designated being devolved. Notwithstanding this formal assignment, it was recognised from the outset that the interaction between devolved and reserved policies would necessitate close co-operation and coordination between UK Government and the devolved administrations on virtually all matters. For instance, both devolution White Papers noted that the devolved administrations would be closely involved in the UK Government policy process with respect to European Union issues - an example of a reserved matter which impacts significantly on devolved competencies.7 Two avenues of territorial involvement in reserved matters were identified - through the offices of the territorial Secretaries of State, who retain their membership of the Cabinet (and, crucially, Cabinet Committees), and via inter-administration and inter-governmental arrangements to be agreed and codified in the form of concordats.8 Once devolution had taken effect, the concordats would play a pivotal role in the new arrangements.
The centrality of the concordats to the new governance system of the UK can readily be demonstrated by considering the devolution legislation itself. Neither the Scotland Act nor the Wales Act provided for an institution or a procedure to facilitate either cooperation or dispute settlement between UK Government and the devolved administrations, or between the devolved administrations themselves, with respect to policies of joint interest - be these reserved or devolved. The only arbitration provision mentioned in the legislation referred to inter-administration disputes over vires and these would be settled by the Privy Council. Instead, it was left to putative concordats to prescribe the procedures and arrangements - including inter-administration dispute settlement - for mediating the relevant policy processes once devolution took effect.9 Clearly, the concordats would assume considerable administrative importance. Beyond this, however, they also would play a crucial political role under the UK devolution model. Under Clause 35 and Clause 58 of the Scotland Act, the Secretary of State is granted a general "power to intervene" to prevent Acts of the Scottish Parliament entering into force where these may be incompatible with UK international obligations or legislation on reserved matters. The Lord Chancellor, Lord Irvine, neatly summarised the resulting constitutional position when he noted; "Although the Westminster Parliament ultimately retains sovereignty, the Scottish Parliament and Scottish Executive enjoy a very high level of autonomy."10Of course, should the Secretary of State exercise this power to intervene then almost certainly this would precipitate a political crisis. Consequently, it would fall to the procedures and arrangements set out in concordats to prevent such a situation from arising. Therefore although the concordats are not, by definition, constitutional documents, it is indisputable that they occupy a pivotal position within the devolution settlement.
As instruments of governance, concordats are designed to tackle two
types of policy externality that arise in many multi-level systems of
governance - policy overlap and policy contagion.11 Policy overlap occurs when two
tiers within a unitary governance system each have competence over a particular
policy - this is commonly described as the problem of concurrent powers.
Devolution has triggered two situations of potential policy overlap; first,
when legislative proposals being considered by the devolved administration
conflict with UK legislation, or legislative proposals, with respect to
reserved matters; second, when legislative proposals being considered by UK
Government conflict with the devolved administration's legislation, or
legislative proposals, with respect to devolved matters. Policy overlap is
unavoidable in the UK devolution model, and represents a potential source of
dispute between UK Government and the devolved administration. The problem is
readily demonstrated with respect to policy on European Union matters. Although
UK European Union policy is a reserved matter, devolution transferred
legislative competence to the Scottish Parliament (and the administrative
authority to the Welsh Assembly) for a range of issues that have a significant
European Union dimension - e.g. agriculture, fisheries, the environment,
transport, and regional policies. Policy overlap becomes problematic if the
position adopted by the UK Government with respect to an EU legislative
proposal on a devolved matter diverges from the devolved administration's
position on that issue. For this reason, the devolution White Papers included a
commitment by the UK Government to work with the devolved administrations at
each of the four stages of the UK's European policy process - policy
formulation, negotiation, implementation, and enforcement.12 Policy overlap can be managed
by two mechanisms: (a) by restricting the legislative autonomy of the devolved
administrations with respect to devolved competencies; (b) by imposing on UK
Government an obligation to consult with the devolved administrations over
policy developments in reserved matters. The concordats represent just such
mechanisms, and stipulate arrangements for co-operation and coordination
between the UK Government and the devolved administrations in cases of
overlapping competencies. Further, the concordats specify the procedures that
will be triggered if the administrations fail to agree a consensus position.
The concordats were also intended to resolve the problem of policy contagion. Policy contagion occurs when the policy adopted (or proposed) by a devolved administration impacts upon - or threatens to impact upon - the policy choices confronting another devolved administration, or the national administration. It is a standard problem of policy assignment in federal-type structures. The asymmetric nature of devolution settlement suggests that policy contagion is most likely to arise between the Scottish and UK administrations. In the devolution debate policy contagion was first anticipated in the context of territorial competition in the financial incentives offered to attract inward investment. Both White Papers stated that such incentives would be subject to "...common UK guidelines and consultation arrangements to be set out in a published concordat."13 In the event, similar concerns about contagion are evident in a number of the concordats. The concordat between the Scottish Executive and UK Government on Health and Social Care is a good example. It states that,
"The creation of the...[devolved administrations]...allows greater divergence in policy making to address local needs and priorities. Without close co-operation between all four UK administrations there is the risk that developments in one administration may inadvertently constrain or put pressure on policy or finances of the other administrations."14
The apparent contradiction between advocating the devolution of competencies while simultaneously restricting the degree to which this can be autonomously exercised can be explained in so far as policy differences between discrete legislative or administrative jurisdictions becomes a factor determining economic or social decision-making (i.e. resource allocation and/or movements of factors of production).15 An added source of concern to the UK Government was the possibility that policy contagion would acquire an explicitly political aspect - for example, should a Scottish administration utilise its policy competencies with the express intention of undermining UK Government's policy decisions.16
In the light of our discussion thus far, the presentation of concordats as constitutionally neutral devices - necessitated by policy externalities arising from devolution and essential if a unitary UK governance system was to be maintained - is persuasive.17 Yet a different interpretation of concordats has been offered by their critics.18 When viewed against a backdrop of asymmetric devolution, the pervasive problem of concurrent powers, and the perceived costs of policy contagion, concordats have been attacked as arrangements designed to stifle devolution and instead to buttress the dominance of central government in the context of an apparent shift to a pluralist (or multi-level) governance system. Before examining this critique, we devote the remainder of this section to setting out the structure and scope of the concordats as 'administrative' instruments.
Implementing devolution in a policy-efficient manner necessitated that new arrangements were devised to facilitate co-operative and coordinated policy-making between the UK Government and the devolved administrations - i.e. to manage policy externalities. Prior to devolution, of course, these were managed internally. The territorial contribution to the UK policy-process was the responsibility of the Scottish and the Welsh Offices, and their respective Secretaries of State. Officials from the territorial offices participated in all the relevant official policy-networks within UK Government, including the all-important Cabinet Committee network responsible for brokering a consensus policy position where inter-departmental disputes had arisen. With devolution and the creation of a new governing tier outside of UK Government, the devolved administrations no longer had access to these official networks and new agreements had to be established to facilitate co-operation and coordinated policy-making between the now separate administrations. As was noted in the devolution White Paper, 'Scotland's Parliament';
"The Scottish Executive will need to keep in close touch with Departments of the UK Government. Good communication systems will be vital. Departments in both administrations will develop mutual understandings covering the appropriate exchange of information, advance notification and joint working. The principles will be as follows: the vast majority of matters should be capable of being handled routinely among officials of the Departments in question; if further discussion is needed on any issue, the Cabinet Office and its Scottish Executive counterpart will mediate, again at official level; on some issues there will need to be discussions between the Scottish Executive and Ministers in the UK Government."19
The concordats elaborated the principles of inter-administration co-operation, and defined the framework within which coordinated policy-making would evolve. It was implicit from the outset, and stressed on many occasions subsequently, that concordats would not create legal obligations or restrictions on any signatory.20 They would be 'voluntary' codes of conduct to guide the day-to-day work of officials in the respective administrations, and could be re-negotiated in the light of experience.21 Concordats were (to be regarded as) neutral political and constitutional documents, whose purpose was to effect a seamless transition of the UK policy process from a system involving one administrative entity to a multi-player system involving a number of participants. The concordats were based on four guidelines:
- full communication and consultation between the administrations on matters of joint interest, with each administration giving due consideration to the views of the other,
- co-operation between administrations in all stages of the development of policies for which each had competence,
- a full exchange of information between the administrations on all relevant policy-related matters - the principle of "no surprises",
- each administration would respect the confidentiality of information passed to it by the other, subject to safeguards where necessary.
As befitted their functional nature, the preparation of concordats was left in the hands of officials during the run-up to devolution and would normally would be signed by senior officials in Whitehall and their counterparts in the territorial administrations. Ministers would become involved only where the subject matter was (deemed to be) politically sensitive, or where officials were unable to agree the precise terms of a particular concordat. The intention was that the concordats would be published once ready, and the expectation was that this would be prior to the inaugural elections to the devolved assemblies scheduled for May, 1999. In the event, the first concordats were not published until late in 1999. A number of reasons were given for the delay, the most convincing of which was simply that the concordats were not ready "on time". However, the implication was that the relevant time frame incorporated a political "window" which closed ahead of the election date to avoid the concordats becoming an election issue.22
The officials charged with drafting the terms of the concordats have acknowledged that, in large measure, they were "making it up as they went along". There was no master plan; no pre-existing model; no apparent political agenda. Instead, the only 'rule' - if it can be called such - was that, wherever possible, prevailing inter-departmental 'good practice' would be codified in the concordat, thereby becoming (post-devolution) recommended inter-administration 'good practice'. Continuity rather than change was sought wherever possible. Therefore, where an administration was considering policy developments which would impact on the other (i.e. where a policy externality arose), co-operation and coordination would be managed principally on an inter-departmental basis much as before - that is, between the relevant department in Whitehall and its counterpart in the devolved administrations.23 New arrangements and procedures would be proposed only where required in the light of the changed constitutional situation. This tended to be the case where the policy issue did not have an obvious departmental 'home' - for instance where the matter was relevant to a number of departments within the devolved administration and cross-departmental coordination was required. In such cases responsibility tended to fall to the relevant central agency within the administrations.24 The most difficult challenge was to devise arrangements capable of mediating disputes between the territorial administration(s) and UK Government in those instances where the inter-departmental procedures (including the 'good offices' of the territorial Secretary of State) had failed to broker a consensus. This raised complex questions of procedure and constitutionality. While it was self-evident that these arrangements could not compromise the ultimate sovereignty of the UK Parliament, at the same time straightforward political realism dictated that they had to be effective in mediating conflict between the parties where disputes arose.
Because of the asymmetrical nature of the devolution settlement, it became clear that two types of concordat would be needed - bilateral and quadrilateral.25 Bilateral concordats would cover inter-administration relations between an individual Whitehall department and its counterpart in one devolved administration.26 In the main, these documents codified the intra-administration consultation and coordination 'good practices' which prevailed prior to devolution, and appended new provisions for resolving inter-administration disputes. Quadrilateral concordats, on the other hand, were (to be) signed jointly by UK Government and each of the (three) devolved administrations. Quadrilateral concordats set out the arrangements for co-operation between the territorial and UK governments on matters of common interest that lay outside single departmental responsibility (e.g. statistics), and on reserved matters on which a territorial as opposed to a departmental input was appropriate, such as international relations and UK European Union policy.27 Later, two additional considerations shaped the final structure of the concordats. First, as many of the terms and conditions of inter-administration policy co-operation and coordination (including the provisions for dispute resolution) would have general applicability to all concordats (bilateral and quadrilateral), it was decided to incorporate these within an over-arching 'super concordat' - the Memorandum of Understanding (MoU). The conditions stipulated in the MoU would be implicit to all other concordats or supplementary agreements.28 Second, the asymmetry of the devolution legislation meant that certain aspects of each of the quadrilateral concordats were not applicable to both Scotland and Wales. This was catered for by producing a common quadrilateral concordat flanked by two bilateral concordats where required.29 The concordats were presented in two tranches. In October, 1999 the MoU, incorporating five quadrilateral concordats, was released. This was followed by the publication, one by one, of the bilateral - departmental and administration specific - concordats.
The structure of the concordats is fairly straightforward. The MoU is divided into two parts. Part I defines the "...principles that will underlie relations..." between UK Government and the devolved administrations.30 As already indicated, it elaborates the broad principles that will govern inter-administration policy co-operation and coordination, emphasising in particular the need for timely and comprehensive exchange of information, full consultation over relevant matters, and confidentiality deliberations. Part I also asserts the general principle that, despite their reserved status, the devolved administrations will be involved in UK international and EU policy-making in so far as these issues affect devolved competencies. Finally, Part I provides for the establishment of a Joint Ministerial Committee (JMC) to be used to resolve inter-administration disputes. 31 Part II of the MoU elaborates the arrangements through five quadrilateral concordats:
- agreement on the Joint Ministerial Committee (JMC);
- concordat on co-ordination of European Union issues,
- concordat on financial assistance to industry;
- concordat on international relations;
- concordat on statistics.
In each case, the concordat stipulates the obligations that fall on each of the administrations in jointly contributing to UK policy in these policy issues, and provides guidance for resolving any disputes that may arise. The agreement on the JMC is fundamental to the devolution exercise. Its terms of reference are:
- to consider non-devolved matters which impinge on devolved responsibilities, and devolved matters which impinge on non-devolved responsibilities;
- where the UK Government and the devolved administrations so agree, to consider devolved matters if it is beneficial to discuss their respective treatment in the different parts of the United Kingdom;
- to keep the arrangements for liaison between the UK Government and the devolved administrations under review; and
- to consider disputes between the administrations.
In addition to dispute resolution, the JMC will address a range of policy issues that arise from the policy externalities accompanying devolution, including inter-administration consultation on UK European policy. Nonetheless, it is likely to be in the discharge of its dispute resolution function that the JMC will receive the closest scrutiny. In this role, the JMC will convene - typically in functional format - where an issue (falling within the ambit of point 'a' above) cannot be resolved through bilateral exchanges at Ministerial level, or through the 'good offices' of the territorial Secretary of State. The JMC machinery can be invoked by UK Government or any of the devolved administrations.32 Any agreement reached within the JMC procedures will be consultative only, although "...the expectation is that participating administrations will support positions that the JMC had agreed".33 Finally, the proceedings of JMC meetings will be confidential, although "...there may be occasions on which the Committee will wish to issue a public statement on the outcome of its discussions."34 The MoU is complemented by a series of bilateral concordats signed between the UK Government and individual devolved administrations. As already indicated, bilateral concordats typically are agreements between the devolved administrations and individual Whitehall departments,35 although in some cases are presented as agreements between the relevant Ministers.36 These concordats stipulate the expectations that each administration has with respect to policy co-operation and coordination in that policy area, with the specific emphasis of each being determined largely by the type of policy externality that has to be accommodated. In total some fourteen bilateral concordats have been signed between UK Government and the Scottish Executive.37
As we have already noted, concordats are not legally binding contracts. Nor are they intended to create rights or obligations that are legally enforceable. They are instead voluntary agreements between administrations which codify 'common sense' principles of 'good governance' in the context of devolution, including an understandable 'no surprises' responsibility on both devolved and UK administrations. As Scottish First Minister Donald Dewar quipped, concordats can best be regarded as "road maps for bureaucrats".38 Presented in that way, concordats appear to be sensible arrangements for effecting the smooth transition from a singular to a pluralist (or multi-level) governance system. However even within these terms, to be successful the concordats in achieving their aim have to address two problems. First, concordats have to be interpreted and operationalised by those to whom they are addressed - namely the officials in the respective administrations. Like all institutions, UK Government departments embody deep-seated cultures in the form of conventions, habits and norms which will need to be superceded if the new arrangements are to work effectively. Second, the concordats have generate a confidence within the polity in general that the arrangements they prescribe are working effectively - that the new arrangement of UK governance does involve a meaningful dialogue between 'equal' partners and is not instead reproducing centralized government under a different guise. Otherwise critics may question the extent to which inter-administration procedures themselves are shaping or determining policy outcomes rather than the devolved administrations doing so by exercising the competencies assigned to them.
4 Other elements were freedom of information legislation, reform of the House of Lords, electoral reform, and initiatives designed to modernise government and parliament.
5 The Assembly is a corporate body.
6 Reserved matters are; constitution of the UK; foreign policy (including relations with the EU); defence and national security; border controls; fiscal and monetary policies (excepting the tax varying power under the Scotland Act and local taxation); common market for UK goods and services; employment regulation; social security; regulation of certain professions; transport safety and regulation; and certain other matters such as Ordnance Survey, broadcasting, etc..
7 See White Papers; Scotland's Parliament, Chapter 5 and A Voice for Wales, Chapter 3
8 Concordats are referred to in both White Papers
9 On 27th July, 1998 Baroness Ramsay made a statement in the House of Lords announcing that a dispute resolution process would be established under the aegis of the Joint Ministerial Committee - see House of Lords Hansard, Column 1488
10 Lord Irvine, the Lord Chancellor speech at Leiden University, October, 1999, emphasis added, http://www.open.gov.uk/lcd/speeches/1998/1998fr.htm
11 Typically policy externalities within multi-level governance (pluralist) systems are resolved according to clear constitutional rules mediated through transparent political procedures - that is, through properly constituted federal institutions and processes. Clearly this does not apply to the reformed UK governance system.
12 See Scotland's Parliament, chapter 5. The Welsh White Paper included a similar commitment that UK European policy would incorporate Welsh considerations.
13 See A Voice for Wales para 2.24 and Scotland's Parliament, para 2.4. The intention was to avoid competition between administrations for footloose investment from arising. However, some MPs felt that this provision undermined the Scottish Executive's autonomy over industrial policy - a devolved competence - and would result in a reduction in the volume of inward investment to Scotland.
14 Concordat on Health and Social Care, para 1, emphasis added
15 In public finance terms it is a standard argument that where the effects of a policy introduced in one jurisdiction spillsover to another jurisdiction there is a case for central intervention to promote that activity if it is beneficial, or restrict it if it is harmful.
16 This would be more likely if the political complexion of the devolved administrations differed from the UK Government.
17 The concordats may be described as procedures for handling the additional policy transaction costs that arise with devolution.
18 See the comments by John Swinney, MSP and Alex Neil, MSP in the course of the debate over concordats held in the Scottish Parliament on 7th October, 1999
19 Scotland's Parliament, para 4.13
20 Were they so to do, they would be elevated to a constitutional status and may be a subject of legal debate.
21 This was very much in keeping with the UK/Whitehall approach to governance which prefers codes and procedures rather that the juridification associated with many forms of constitutionalism.
22 The fact that, in the event, the concordats were not published until late in 1999 does suggest that they simply were not ready sooner rather than their being caught up in a pre-election purdah. An added complication during this period was the lack of progress being made with the devolution settlement in Northern Ireland which may have contributed to this delay.
23 The pervasive incidence of policy externalities under the UK devolution model always implied that a large number of concordats would be required.
24 The Cabinet Office fulfilled this role in Whitehall, and the newly established Executive Secretariat was intended to do so within the Scottish Executive. In Wales this would fall to the relevant committee within the Assembly.
25 A range of options for the design of the concordats were considered as the inter-administrative implications of an asymmetric devolution settlement became clearer.
26 As the name implies, a bilateral concordat involved only two parties - the Whitehall department and its territorial counterpart in a devolved administration. Most concordats are bilateral simply because the respective devolution settlements differ so greatly.
27 If a policy was covered both by a bilateral and a quadrilateral concordat (e.g. agricultural) then the terms of the former had to be consistent with the terms of the latter.
28 That is, any inter-administration procedures agreed subsequently.
29 This was the case in the concordats on International Relations, and the concordat on the European Union.
30 MoU, Part I, para. 1
31 The JMC was established to settle disputes between the territorial administrations and the UK Government with respect to policy over reserved matters, and as a forum for co-ordinating policy between the territorial administrations and UK Government with respect to devolved matters. It is an advisory body which will include Ministers from the devolved administrations and UK Government. Generally it will convene in 'functional' format, and be chaired by the relevant UK Minister. Its conclusions are not binding on any party.
32 MoU, point A1.8
33 op cit, point A1.10
34 op cit, point A1.11
35 The Departments were Culture, Media and Sport; MAFF; the Cabinet Office; DETR; DTI; the Home Office; the Lord Chancellors Department; DSS; and the Treasury.
36 This was the case for the concordats covering Defence; Education and Employment; and Health and Social Care.
37 The ethos of bilateral concordats is neatly captured in the concordat between the SE and the Lord Chancellors Department. The concordat seeks to ensure that there are "no surprises" between administrations with regard to any plans either has which might impinge on the responsibilities of the other.
38 Donald Dewar made this remark during the Scottish Parliament's debate on the concordats held on 7th October, 1999.