How the machinery of devolution rusted beyond repair

In the wake of the Scottish independence referendum in 2014, the Smith Commission was established to not only assess what further powers could be devolved to the Scottish parliament, but also the ways in which central government worked with the devolved administrations. In the intense media commentary that followed the publication of the commission’s recommendations in November that same year, however, one crucial proposal went largely unnoticed. Amid the outlines for powers over welfare and the Crown Estate was the much less glamorous suggestion that the Joint Ministerial Committee (JCM), the platform by which the UK and devolved administrations meet to discuss policy and issues of mutual interest, be strengthened and given a more prominent role within intergovernmental relations. A subsequent paper delivered in January 2015 by then secretary of state for Scotland, Alistair Carmichael, agreed that reforms of the JMC were needed “as a matter of urgency.” Yet by the time the recommendations of the commission gave way to its surrogate bill, the Scotland Act 2016, all proposals of reforming the JMC had disappeared.

Perhaps reform was dropped because Westminster had come to regard the JMC as an ineffective venture. Ever since its conception with devolution in 1999, scheduling of the committee has been largely ad hoc. Meetings in its plenary form, a rare opportunity in which all devolved first ministers can meet with the prime minister at the same time, are especially non-committal—despite commitments to hold at least one such session every year. And although originally used to discuss a variety of issues like poverty, the Barnett formula and public health, in the past four years it has been dominated by a single topic—Brexit—that has given it a reputation for grievance rather than consensus-building. Some of the most public disagreements from the devolved administrations over the UK’s exit strategy have stemmed from meetings of the JMC sub-committee on EU Negotiations. The experience has been such that ministers from Wales and Scotland have come to characterise the JMC as a means for the British government to announce its foregone conclusions rather than appeal for input and ideas. “The reality,” said the Scottish government’s Cabinet Secretary for the Constitution Mike Russell back in 2019, “is that UK ministers have paid lip-service to any respect agenda towards the devolved governments,” before adding: “there is a distinction between holding meetings and engaging seriously on the basis of equal partnership.”

Throughout all this you could be forgiven for forgetting the committee even exists; with the divisions over Brexit so all-pervasive, disagreements appear the same old story no matter where they take place. But in the context of the JMC, such disagreements are perhaps less a sign of ideological difference than they are a symptom of the fundamental problems with the machinery of consultation itself. The reality is that the devolution settlement, founded during a period of exceptional stability in British politics, was never prepared to handle the kind of disputes and divergence we see today—as 2020 has made clearer than ever.

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In 2000, secretary of state for Scotland John Reid described devolution as “the most radical transformation of government in 300 years”—but from Whitehall’s point of view it was largely a case of changing the office furniture. Most of the powers originally devolved to the home nations were the exclusive purview of their own so-called “territorial” departments, meaning the need to co-ordinate on areas of crossover was minimal—especially so long as crucial powers on tax and welfare remained at the Exchequer. Add to this that a dominant Labour Party controlled Westminster, Holyrood and Cardiff Bay at the same time, and the JMC’s role was far from clear-cut. It did not meet at all in its plenary form between 2002 and 2008, when ministers opted instead for party-political channels of communication.

With things so settled on a domestic level, the prevailing function of the JMC fell on discussions about European Union policy. The JMC Europe sub-committee is—or was—one of its most frequently convened formats, as well as the most formalised, originally chaired by the foreign secretary before every European Council meeting. As the primary way in which the British government ensured devolved administrations were involved “as fully as possible in discussions about the formulation of the UK’s policy position,” it was the closest Scotland, Wales and Northern Ireland could get to influencing the EU in their own right. The fact remained however that, in the early days, genuine differences were minimal. Little thought was given as to what role the JMC might play when the political arithmetic did not add up quite so neatly.

It was only really from 2010 onwards, with the growing ascendency of the SNP in Holyrood and a new coalition government in Westminster, that a secondary purpose for the JMC became necessary: to resolve and mitigate disputes. A new “Dispute Resolution Protocol” was adopted at this time, as well as a new Memorandum of Understanding two years later. In this, parties were encouraged to refer any disputes that “cannot be resolved bilaterally, or through the offices of the relevant territorial Secretary of State” to the JMC Secretariat. Simultaneously, however, those self-same parties were to accept that “the JMC is not a decision-making body, that the basis on which the procedures will operate is the facilitation of agreement between the parties in dispute, not the imposition of any solution.”

It is here that some of the problems with the JMC format become apparent. It shows that despite its presentation as a quasi-federative, “coming together” of the home nations, the committee is still fundamentally under Westminster’s unilateral authority. The precondition that devolved powers must first bilaterally refer to their “territorial” secretaries in London, rather than multilaterally on the committee, also points towards an ingrained tendency—as observed in a 2015 report by the Institute for Government—“to treat the devolved administrations as other government departments.”

Even in the event that complaints do get aired at the JMC, central government reserves the right not to listen if it doesn’t like what it hears: the committee convenes only when Westminster decides, much to the chagrin of all others.

While goodwill of central government could be depended upon, this underlying imbalance of power could be overlooked. But we know what happened next—with Brexit everything changed. As the job of coming to a consensus has become that much more onerous, goodwill has been the first thing to go, and the JMC with it. Despite comments from former de facto deputy prime minister David Lidington that Holyrood had “engaged for many months in a very constructive fashion” within the JMC sub-committee on EU Negotiations, it did not meet for eight months after February 2017, despite previous commitments to meet every month. Since then it’s convening has been sporadic. Meanwhile, for all his self-aggrandisement as “Minister for the Union,” Boris Johnson himself has yet to chair a plenary session of the JMC, the last of which took place in 2018. Throughout all this side-lining, Westminster has continued its posturing as the only adult in the room trying its best to co-operate with uncooperative partners. All the JMC has proven is that it’s easy to appear reasonable when you hold all the cards.

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In theory, the two major functions of the JMC—European affairs and the airing of complaints—should have found a natural home within domestic Brexit negotiations. Instead, at a time when such a platform was needed more than ever, its faults have gotten the better of it. With respect and trust between governments so low it seems difficult to imagine how the JMC can be meaningfully revived once Brexit is “behind us.”

At the heart of the dilemma is the question of what British unity is supposed to look like. Under the New Labour mantra of “compromise,” unity meant all views should be given the chance to be heard and considered—even if, as it often happened in practice, those views should turn out to be largely the same. Now after so much chronic deadlock over Brexit, unilateral decision making has returned as the “only way forward,” while also conveniently serving an agenda. To characterise established conventions and institutions—like the JMC, but also the civil service and the Supreme Court—as obstructive red tape getting in the way of what needs to be done helps to justify their wholesale dismissal or alteration.

Another review of the JMC’s procedures was announced in March 2018, but it’s uncertain what this will achieve in the current climate of increasing centralisation. Public updates on the review have been scant, with the last word being a series of vague draft “principles” published in July 2019, yet to be signed by any head of government. That successive Westminster administrations have conceded time and again that the JMC needs fixing while being in no rush to fix it just goes to show the UK remains far more of a unitary state than it likes to admit.

As Brexit day draws nearer, one thing does remain certain. Lord Smith’s statement six years ago that governments needed “to work together to create a more productive, robust, visible and transparent relationship” has not aged in the slightest.