In 2019 the Welsh Government published a document, Reforming our Union: Shared Governance in the UK. It reissued an updated version in 2021 in which the First Minister, Mark Drakeford, stated that:
Too often we see the UK government act in an aggressively unilateral way, claiming to act on behalf of the whole UK, but without regard for the status of the nations and the democratic mandates of their government.
He further said that it was time for “relationships to be reset”.
The document went on to suggest “the United Kingdom is best seen now as a voluntary association of nations taking the form of a multi-national state”. It argued that Wales is committed to this, but that it must be include the recognition of “popular sovereignty” across the UK’s nations. It concluded that “Parliamentary sovereignty as traditionally understood no longer provides a sound foundation for this evolving constitution.”
While Reforming our Union is full of aspirations for the UK as a voluntary association of nations it is unclear that this view of the constitution is shared at Westminster or even with Labour Party colleagues. Furthermore, how is the circle to be squared with the “aggressive unilateralism” reportedly being practiced by the UK Government? This blogpost will take a closer look at the current state of inter-governmental relations (IGR) between the Welsh Government and the UK Government.
Review of Intergovernmental Relations
A review of intergovernmental relations (IGR) was undertaken jointly by the UK government and the devolved administrations to update intergovernmental structures and ways of working. All four governments have agreed to work under these new arrangements.
The review stated that collaborative working will be founded on the following 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.
The Review put in place new IGR mechanisms which are intended to operate on three tiers. The first is regular portfolio-level engagement on areas of mutual interest. This is intended to take place in Inter-ministerial Groups (IMGs), which cover policy areas and will aim to meet regularly on a quadrilateral basis.
The middle tier is an Inter-ministerial Standing Committee (IMSC) to consider; those issues which cannot be covered at the portfolio-level, strategic considerations affecting many different portfolios and any cross-cutting international issues. The catchily named Finance Inter-ministerial Standing Committee (F:ISC) consists of representatives of the Treasury, together with the devolved governments’ finance ministers and considers finance and funding matters.
The top tier of engagement is the Prime Minister and Heads of Devolved Governments Council (‘the Council’). All middle-tier and portfolio engagement will be accountable to this forum.
Since 2020 the Welsh Government has formally reported to the Senedd on the state of these relations. In its annual report in July 2023 the Welsh Government said there were “positive early indications of improvements, utilising the robust intergovernmental machinery collectively developed by the UK government and the devolved governments.” Sixteen of the proposed 20 portfolio-level inter-ministerial groups have been established, and the middle tier Inter-ministerial Standing Committee and the Finance Inter-ministerial Standing Committee have met, albeit irregularly. The first meeting of the Prime Minister and Heads of Devolved Governments Council was held in November 2022.
However, the report said that the instability of the UK government over this period and frequent UK ministerial changes, slowed progress and momentum in implementing the new ways of working and mechanisms.
The Sewel Convention
Nevertheless, the operation of the Sewel Convention, whereby the consent of the Senedd is required for UK Bills which impact on devolved powers, is of concern to the Welsh Government. It reported late engagement from Bill teams in the UK Government and a reluctance to share information and drafting. It viewed these as “symptoms of a disregard for the legitimate interest the Welsh Government and Senedd have in UK legislation which touches on devolved issues”.
UK Bills introduced during 2022 which the Senedd refused consent to include the Northern Ireland Protocol Bill; the Genetic Technology (Precision Breeding) Bill; the Trade (Australia and New Zealand) Bill; the Procurement Bill (in part) and the Retained EU Law Bill. The UK Government has ignored the Senedd’s refusal of consent, in breach of the Sewel convention.
As of 31 March 2023, the Welsh Government has also recommended consent be withheld in relation to the Strikes (Minimum Service Levels) Bill, the Illegal Migration Bill, and the majority of the Levelling-up and Regeneration Bill.
At a recent meeting of the Legislation, Justice and Constitution Committee the Counsel General was asked to comment on Sewel in relation to the new dispute resolution process. He said:
The crux of the problem with Sewel is either the lack of codification of Sewel—the lack of clarity as to what it means, and the diverse ways in which it is treated […] But, can a disputes process resolve what is, ultimately, a political process of a constitutional disagreement that doesn’t have a real justiciable status?
The Counsel General said the purpose of a dispute resolution process is to provide a mechanism to avoiding having disputes. He said that so far, nothing from any of the governments has been referred to the dispute process. In the same meeting, the Climate Change Minister reported limited engagement by UK ministers on the Energy Bill, which had the knock-on effect of delaying the publication of the Legislative Consent Memorandum and left minimal time of scrutiny.
Common Frameworks
Common frameworks are agreements between the UK and devolved governments, on how to manage divergence in certain policy areas formerly governed or coordinated at EU level. The UK and devolved governments have plans for 26 common frameworks in areas devolved to Wales, such as food safety, air quality, waste, and public health. Most common frameworks came into effect on a provisional basis at the end of the Brexit transition period on 31 December 2020.
Any of the four governments can request that the UK Government exclude an area covered by a common framework from the scope of the UK Internal Market Act. Welsh law prohibiting the sale of some single use plastics is one example of a law that falls within such an exclusion.
The frameworks also offer new opportunities for the devolved governments’ involvement in international affairs, although the First Minister has said these ambitions “have not yet been realised”.
The four governments of the UK agreed that the UK’s legislatures would have the chance to scrutinise draft versions of the frameworks and make recommendations before they are finalised. The four legislatures in the UK have gone about this task in different ways, though. In Wales, individual subject committees have considered frameworks in their areas in detail while the Legislation, Justice and Constitution Committee has overseen the development of the overall programme and the cross-cutting issues emerging from it. Most of the frameworks are provisionally in operation.
Barnett Formula
The Barnett Formula continues to be a source of friction between the Welsh Government and the UK Government. There is currently a disagreement about whether Wales should receive a Barnett Consequential in respect of HS2. In answer to a Written Question in 2022 the Counsel General replied:
The UK Government deems HS2 to be an England-and-Wales project and therefore it does not attract consequential funding for Wales by virtue of the Barnett formula. The Welsh Government’s position is that HS2 provides no overall benefit to Wales and it should therefore attract Barnett formula consequential funding.
In Reforming the Union, the Welsh Government made some recommendations on Funding. Including that funding levels should be based on need which would mean a fair level of funding is available across the UK for all. Also, that the UK government should not be able to make funding available outside these arrangements without consent and new independent public body, which is accountable to all for UK governments, should oversee these funding arrangements, instead of the UK government.
Future Developments?
While there was apparent consensus across all four governments regarding the new IGR mechanism emerging from the review, the evidence from the Welsh Government is that it has been slow to get up and running due to the instability of the UK Government. As the general election is about a year away, it is questionable how a position of greater equilibrium can be realistically achieved in that time.
In the event of a Labour victory, it should not be assumed that intergovernmental relations will revert to some imagined sunlit uplands. The memoirs of former First Ministers attest to that. In 2020 Carwyn Jones spoke of being rubbed up the wrong way “through a basic lack of thinking and respect for devolution” by some of his Westminster based colleagues.
The Welsh Government has set out its stall in Reforming the Union but there are questions about the extent to which to the UK leadership is signed up to it. Keir Starmer did set up the Brown Commission in 2020, in which some findings reflect those in the Welsh document. The Brown Report proposes devolving responsibility for probation and youth justice to Wales, falling short of the Welsh Government’s call for full policing and justice devolution. Labour has been very quiet about how much of the Brown Commission’s report will be adopted. The Labour Party manifesto is awaited with anticipation.
Alys Thomas.
Alys Thomas has researched and written about constitutional issues for many years, particularly on the devolution settlement in Wales. From 2003 to 2019 she worked for National Assembly for Wales’ Research Service in the Constitution Team. She is a contributing writer for the Constitution Society.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.