 Good morning and welcome to members and members of the public to our 22nd meeting of the Devolution for the Powers Committee in 2015. It is normal at this point to remind members to switch all their phones and electronic equipment, as sometimes that can interfere with the sound systems. Agenda item number one this morning is parliamentary oversight of intergovernmental relations. We have a panel of academic witnesses with us this morning, delighted that you are here. We have Professor Natalie Benka from the University of Constance in Germany, Professor Bart Madden's University of Lirven in Belgium, and Drs. Sean Miller, University of Ben Switzerland, and Professor Julie Simmons, University of Gelf Canada. Welcome to you all this morning. We haven't asked for any opening statements and we have got a precious hour with you, so we're going to go directly to the questions and I'm going to turn that up to you. You're all here because you're experts in intergovernmental relations in a variety of jurisdictions. To what extent in each of these countries do you consider that the legislators are effective in scrutinising intergovernmental relations? It's a starter for one. Who would like to take that? Professor Simmons. Thank you. In Canada, we have Westminster-style parliamentary decision making at both the federal but the central level and the provincial level or the subunits in the federation. The discussions between the central government and the provincial governments to the extent that they take place are in extra parliamentary forums, so outside of either of the two legislatures either at the central or at the provincial governments, and they involve exclusively the executive branch of government. For example, the premiers of provinces would get together if they were invited by the prime minister and have a meeting. However, they have not had such a meeting since 2008, so the kind of decision making that takes place is usually at the sectoral level, so all ministers of social services, for example, would get together among the provinces with their federal counterpart. But again, they are present at the meeting by virtue of the fact that they are the minister for that policy area and are a member of the executive in both, in their respective legislatures. Thank you. Anyone else? Mike continued, giving evidence in Germany. We have traditionally very strong influence of the lender in federal decision making, and we have fully fledged parliaments in all 16 lender. However, I am not aware of any formal mechanism of parliamentary scrutiny on intergovernmental relations. They are generally regarded as exclusively executive. We have 18 ministerial councils on more or less every policy field where the lender ministers meet regularly on irregular basis between two and four times a year, and in most of those conferences the federal ministers are involved. However, let me say two things. The one is, I think that our lender parliaments, in a way, misperceive their own role because they try to do the same kind of politics that the federal parliament is doing, but due to the typical distribution of functions between the federal and the lender level, the lender needs to care more about implementing laws. Parliamentarians tend to neglect the administrative aspect of implementing laws, so they do not take enough interest in those intergovernmental agreements. The second point is, I think that in the parliamentary system a lot of information goes through the party committees, so that of course those parties that hold the government, they would inform their party members in the parliament, but this is insufficient. So what would be really necessary would be a rule that results of intergovernmental meetings, of ministerial conferences, were at least made public on a regular basis, and I think that parliament could profit either from a regulation that they directly got the results in form of a protocol or something, so that they just get informed about what was decided upon, or even better if there was a regulation that results of ministerial conferences were made public, for example on the websites of the conferences, so that even the wider public and the media were able to access those results, so there would be kind of a public debate and a better transparency and accountability of executive decision making. However, one great advantage of those interministerial councils in Germany is that they are highly informal and that they are not open to the public because it is a necessary precondition for land governments that they can informally, for example, change the position in negotiations without being held accountable for that from the parliament, and I would not touch this vital advantage of informal networks and informal negotiations by requiring for example to make the meetings public. They are always close from the public and I think this is very important to make it work. Thank you. Dr Miller. Thank you first of all very much for the opportunity to be here, it's really a pleasure. The Swiss canton of the regional parliament, they are not effective at all in overseeing intergovernmental relations because it's considered to be a prerogative of the government, so they consider this to fall under foreign affairs even if it's dealt with within Switzerland with other canton, but another canton is like a different country in that sense. The reason for the lack of efficiency is that Swiss parliamentarians are no full time politicians, they are part time politicians, which means they extremely, they lack resources, they lack the time to even fully deal with their own home rule legislation, let alone dealing with complex matters of intergovernmental relations, so they are quite happy that the government does the job. The second reason is that the parliaments themselves are not really important because anyway every important decision, every act of parliament or every act of the government is subject to a challenge through direct democracy, so if really there is something contentious it will be voted upon and the people decide, so the parliaments don't really matter. The final point, there is one exception. The French speaking cantons, the six French speaking cantons of Switzerland, they have signed a special interparliamentary convention which institutes a permanent interparliamentary body with six delegates from each of the six parliaments and they meet three times a year and they discuss amongst themselves and they are there to monitor all the intergovernmental treaties and agreements that are being concluded by any of the six cantons. Professor Martins. Thank you. Yes, first of all I would like to emphasise that I am really honoured to be invited by this prestigious parliament. In Belgium intergovernmental relations are largely based on co-operation agreements between the various authorities and these co-operation agreements, some of them are executive, other co-operation agreements are legislative and have to be agreed upon in parliament. About half of the co-operation agreements have to be put before parliament if they have legislative implications, if they have budgetary implications or if they generate rights or obligations for the citizens. Now in parliament, both at the federal level or at the level of the member states, these co-operation agreements are dealt with in the same way as international treaties which imply that they cannot be amended by parliament. Parliament either agrees or disagrees and I do not know of any instances where parliaments have ever disagreed with these co-operation agreements. And yet these co-operation agreements are very important because they limit the scope of legislative work afterwards. So the legislation has to be in conformity with these co-operation agreements. So in Belgium this is generally considered as a kind of democratic deficit, the fact that the involvement of parliament in bringing about and the agreement on the co-operation agreements is actually very limited. And even if they have to be agreed upon in parliament, there is very little discussion in parliament. Also because these co-operation agreements deal with very technical matters. In the last reform of the state, which was agreed upon in 2011 and implemented in 2012-2013, a new device was introduced to kind of solve this democratic deficit. And that involves the possibility of voting common laws in the various parliaments. So for example in the parliament of Flanders and the parliament of Wallonia will be able to vote a common law which implies that the same text will be voted in the Flemish parliament and in the Walloon parliament and will be prepared by an inter-parliamentary commission. So this is a new device and we don't yet know to what extent this will be used and this will help to solve this democratic deficit. But most institutionalists or constitutionalists fear that this will be a much too cumbersome procedure and it will really come to nothing. It will be very exceptional, this procedure. Given that we have a limited amount of time, I'm just going to open it up to questions now from committee members and ask for concise questions and concise answers and we'll make some progress. Malcolm Chisholm followed by Alex Johnson. I think you've probably covered up. I really want to ask you two questions. I think to some extent you've covered the first one but I suppose in a kind of way from your first answers, thank you by the way, all of you for very interesting and informative papers. Parliaments aren't coming out of this too well. It struck me when I read your papers for example. I didn't know this. The Buddhist rat is made up from lender governments, not parliaments, and then Professor Simmons paper highlighting the fact that it's bilateral meetings between executive branches that's almost the foundation of inter-government relations. I mean in a kind of way you've covered that but I mean maybe I can roll it up in my second question and you can comment on either. The other area that there were lots of areas that interested me but one thing that struck me was a reference in Professor Madden's paper where he quoted some research which said that in a normal federal system statewide or federal parties constitute by far the most important element of linkage between the statewide and regional party systems and I think you were saying that didn't happen in Belgium, it doesn't happen in the UK because the SNP is just a Scottish party but I'm just taking those two big ideas to what extent are these party relations at different layers of government important in your country. If you want to say any more about the executive, I suppose crudely I've got those two ideas in my mind. We've got executives coming together in the different countries and in some of the countries we've got parties kind of facilitating those inter-government relations so either or both of those two areas would be interesting for your comments. I think with regard to Belgium it is important to make a distinction between various levels. I referred to the level of the cooperation agreements earlier. This is like the oil which makes the mechanism function but at this level the very technical conflicts or disputes are settled. But then there is the political level where we also have various cooperation devices, the most important of which is the federal consultation committee in which the prime ministers of the federal level and of the federation and the various member states meet. While it appears that at the administrative level, the level of the cooperation agreements, this is largely functioning when an issue is actually being politicised, it is raised to the level of the political decision making to the level of the consultation committee and then it is actually very difficult to reach a solution. That is related to the problem of the split political parties in Belgium and of the asymmetry between the various coalitions. For example right now we have a centre-right coalition at the federal level but we have a central, also at the Flemish level but we have a central left coalition at the level of the Walloon region and the Francophone community. So there is no party at the Francophone side which is part of both the federal coalition and the regional coalition. This is actually the first time that this is the case in the history of Belgian federalism and this makes it very difficult to reach a solution in the consultation committee. So what the consultation committee actually does if there is a politicised conflict is noticing that there is a conflict and that there are different points of views from the different member states or the different levels. Focuss on that issue about conflict resolution later, I think there are some questions on that. Does anyone else want to respond to Malcolm's question? Professor Simmons. In Canada the party system isn't a federated system so in other words there is a Conservative party at the national level but it does not have any formal ties with any of the right wing parties at any level. Within any of the provinces and sometimes the provinces have a different name for their Conservative party to make things confusing. So for example British Columbia's Conservative party is called the Liberal party which is the central party at the national level and the Conservative party in Saskatchewan is called the Saskatchewan party. It's called the Wild Rose party in Alberta. So there is no formal ties except for in the new Democratic party which is the most left wing party active in the parliaments at both the federal and provincial levels. And they do have a federated system but because the new Democratic party has never formed yet the government at the national level maybe in a couple weeks because they haven't yet formed the government at the national level we haven't been able to see a lot of cross pollination between say ministers who have held portfolios at a provincial level been involved in the legislatures there and then moving into the national forum which I think is a very healthy thing when that can exist as one way of encouraging politicians at either level to kind of be thinking about the other order of government. So in other words if you're a provincial politician thinking about things in national terms sometimes is good not necessarily always thinking about things in terms of protecting the turf of the province and likewise as a federal politician being able to think about things from the perspective of individual provinces or nations or what have you within the broader state. Thank you. I totally agree to your diagnosis Mr Chesson and I just want to emphasise the importance of networks in German intergovernmental relations and those networks are indeed a mix of party political and bureaucratic. So what is a very important informal institution in Germany is we have telephone weekly telephone conferences among ministerial bureaucrats of the lender ministries and state chancellaries but they are like two overlapping networks and one is the A round and the other is the B round from lender governed mainly by social Democratic parties on the one hand side lender governed mainly by Christian Democratic parties on the other hand side. So this is a very strong and powerful informal network which operates through those telephone conference and which operates also through informal meetings in Berlin where ministerial bureaucrats are sent from the lender to the lender representations they work in Berlin and they go to factional committees in the federal parliament for example. There is a lump given by the Christian Democrats they send a ministerial bureaucrat to Berlin and he goes to a meeting of his policy field of a committee of the party committee in the federal parliament so there is a very very close interconnection and this is where information flows move and I know this is very unpleasant to say but the lender parliaments play close to an important role in those networks. So information really goes between ministerial bureaucrats and the policy experts in the parties which is facilitated by the fact that we have a strongly vertically integrated party system so we have the same parties at the lender level and at the federal level. Just to make the point that the Swiss case is the exact opposite of Belgium in that regard because all the parties or all the major parties that are in power at the federal level at the moment there are five parties in power. There are also more or less in power in any of the 26 cantons because there are so many parties it's a multi-party system and there are so many veto channels that it's just impossible to have Westminster type government opposition because the opposition has so much power that it's better to include it in the government so it doesn't take up the veto through direct democratic challenge. The second point is of course there is one exception, the canton of Ticino which is the only Italian speaking canton of Switzerland has its own regionalist party, the Lega di Ticinesi, that's a league for the Ticino inhabitants and it really started to take off in the last 20 years on an agenda of we are different, we don't want secession, we don't want independence because they're very small and they could only go to Italy, nobody wants to go to Italy. In fact what they would like is more federal involvement in regional affairs, more subsidies, more protection and also to be out of the European Union but that's the only case of this disintegration of the party system otherwise party channels are very important like in Germany for transmitting the information in both directions. We need to move our canter now. I suppose that was Alec Johnson followed by Tavish. I think that parliamentary scrutiny of intergovernmental relations is a rare beast but where it is achieved is easier to achieve where there's a formal institutionalised structure. Given that, I see y'all nodding, the simple question is that we are observing what's happened in other countries and it seems to be that it has evolved over time, it has reacted to demands at different times. Structures are very much specialised for the areas that they're in. We have a chance to look at it from an evolutionary structure and try to put parliamentary scrutiny into the structure at an early stage. If you had a blank slate in your various countries what would you do differently? What should we be doing to institutionalise parliamentary scrutiny of intergovernmental relations? I would just make two points. The first is indeed I would give a kind of legal foundation to interministerial councils. This would help to oblige them to meet on a regular basis and would not make meetings dependent for example on the will of the Prime Minister. In Germany this is not necessary because we have the habit of doing it but if you want to establish a habit of doing it it is certainly helpful to have a legal foundation. The second point is I would add in this legal foundation an obligation to make results of the negotiations public. This is very important. This is something that I'm really unhappy about the German system because it's so informal that you just don't get the results. We as researchers don't get them and the polyamines don't get them either. So at least a provision saying okay we get a protocol of the results of each meeting and this is given to the information of polyamines. I agree that those principles are important from your experience. Is there anyone else who wants to add any one or two points to that or do they generally agree? My impression on the basis of the Belgian case is that at a technical level institutionalisation is not so important. I think the technicians, the civil servants, the cabinet members will find a way to solve technical matters. We have a huge number of institutional devices in Belgium to facilitate cooperation but my impression is that these are not so important and so they will find even if they wouldn't exist they would find a way via ad hoc regulations to solve issues. On the other hand when issues become politicised then it's already too late then the institutions will not help either because it becomes a political issue and whether you have these devices or not it doesn't make such a big difference. But there is one thing I should add. I have talked about these various layers, the more executive administrative layer of cooperative agreements, the political layer which very exceptionally is able to solve political issues. But then we have another layer in Belgium which is becoming increasingly important and that is the constitutional court. The constitutional court is increasingly becoming a very important player to solve political disputes if there is a dispute according to who is competent for a certain matter. If for instance we had a dispute in Belgium with regard to foreign trade which is a matter competence of the regions yet there was still interference of the federal ministry of foreign affairs in foreign trade policy. So this was a big issue in Belgium political dispute and this was a couple of months ago finally settled by the constitutional court. The powers of the constitutional court have also been increased through the last reform of the state. The constitutional court will now also be able to check whether the legislation is in conformity with the constitutional principle of federal loyalty and the constitutional court has the power to abrogate laws. In the recent column I have raised this issue and I have said actually the constitutional court is the most powerful parliament in Belgium. It is not directly elected in a way it is indirectly elected because the members are appointed by the federal parliament. But it is actually the final stage of the legislative process. If a law is voted in parliament then everybody waits and sees what the constitutional court will say in the end. Obviously before the constitutional court can scrutinise a law somebody has to put it before the constitutional court but that is increasingly the case because if a law is a little bit controversial then somebody will put the case before the constitutional court. I think all of us sitting around this table might see routine recourse to the courts in some form as a horrifying prospect. Are you recommending it? No because I think the Spanish case is very interesting in that respect. You have the tribunal constitutionale in Spain which plays the same role as a constitutional court in Belgium which also consists of politically appointed judges but its role has become increasingly controversial. That's one of the reasons why the independentists in Catalonia have so much support and might even win the quasi referendum on the 27th of September because they argue that the constitutional court is actually a politicised organ. This is composed of Spanish minded judges who actually abrogate most of the laws which the Catalonian parliament voted so this is a risk that the constitutional court if it is obliged to become a political player will become politicised. Obviously the major issue is who appoints the judges in this constitutional court and to what extent is this transparent in the United States? This is very transparent. There are hearings. We've got that point. If we don't cooperate and if we don't set up some trustful relationships where we might end. Tavish Scott please. Very much like your constitutional principle of federal loyalty that sounds something we should come back to in this country. I actually wanted to ask the German experience in terms of a practical issue. Obviously your country is dealing with the refugee crisis in a very public way and you're to be applauded for that. Was the federal government's decision to encourage so many people from Syria to come to Germany discussed previously through the mechanisms you described with the lander? No, there was no time. There was simply no time. We had a public discussion trying to figure out why and how Angela Merkel came to this decision. I feel it was a typical instance of Chancellor prerogative and she decided quite autonomously. What happened was a discussion afterwards because the lander now came and said, okay, this is your decision but we have to handle it so we need the money and we need the facilities. After this decision now the typical intergovernmental mechanisms start working. That's very helpful and I can very much understand that. The other question that I wanted to ask was of the Canadian experience because obviously it's, as you rightly said, Professor Simmons, much more akin to a Westminster system in that sense. Do you have a perspective on the point that Alex Johnson was asking about as to whether intergovernmental relations should be backed by some kind of statute by law? Or would that make any difference to the way your prime ministers, as you were describing, basically not met the provincial leaders' premiers since, I can't remember you said, 12 years or so? 2008. Yes, so in Canada for some time throughout history since about the 1960s the provinces, the leaders of each of the provinces, the premiers meet on an annual basis and they have from time to time over that period called for regularised meetings with the prime minister. The latest kind of iteration of that was in discussions in about 2003 they were trying to create a new institution that might indeed involve the prime minister and in fact this was spearheaded by Quebec. Quebec wanted to have regular institutionalised intergovernmental forum where leaders met and ultimately the other premiers would only agree to that institutionalised forum if they didn't want to extend the invitation to the federal government. Was there any parliamentary scrutiny or was there any discussion of parliamentary scrutiny of that process when those discussions took place? There wasn't, although the discussions were at the executive level so I'm not privy to those discussions. But the parliaments, whether in Quebec or in Vancouver, didn't kick up and say, wait a minute, we've got to have a role in that? No, no, but that's because that would have been a monumental change had it come about and so the prospect of bringing parliaments into the discussion would probably be a second monumental change. I will also argue in fairness that in the discussion it was more the monitoring of what's happening akin to the points that your colleagues have been making. That was all really interesting and it leads on to what I wanted to bring up. It relates back to last night's round table discussion that we had and it was Professor Guy La Forêt who said that to make intergovernmental relations and parliamentary relations and inclusion in that work you really had to challenge the historical hierarchies and I thought that was a really interesting comment to make and we could well be in a privileged position in that we're sort of starting this off rather than where your respective legislatures are but we do have historical hierarchies of all sorts within the British system. Another participant had talked about strengthening the relationships amongst the devolved institutions and Professor Miller raised that today as well as part of your contribution. I would like your opinions on how you challenge the historical hierarchies and what do you see strengthening the relationships amongst the devolved institutions and how can that be used to challenge these hierarchies? Because within the settlement that we have in the UK at the moment there's a British Irish council but beyond that there's nothing except very informal meetings like Professor Benka mentioned around about the joint ministerial committees that sometimes meet. Maybe I'll just pick up on that first if I may because you're right that this is a particular feature of Swiss federalism that I mean to begin with the hierarchy in Switzerland is the other way around. It's the canton's that call the shots and the national government that is weaker in that sense has less money has less power than the bottom level. So maybe most interesting in your case would be the fact or the insight that coalitions can be issue specific and can be a variable geometry. So I give you an example. For example, fiscal equalization. The rich regions pay the poor regions. In Switzerland currently there are nine rich regions and 17 poor regions. The way this came about was that the poor regions got together beforehand and they came to an agreement that this is the way the system should work and let's do this formula. So we have more winners than losers with the result that in a popular vote obviously the majority had won so there you go. Now the interesting fact is that the rich regions are not only the German or French speaking or the mountain or the rural areas they're all over the place. So on the issue of fiscal equalization the alliance between the winners in that case is different than say on education policy where there are other interests than say on rural or urban planning where there are other alliances. So my advice if I can be so frank would be to seek for issue specific coalitions with other players involved in the British system. So why not and it was mentioned yesterday team up with the city of London if it's about developing economic development. Why not team up with local governments in other areas. It doesn't always have to be Wales or Northern Ireland that you have to be in bed so to speak. Well a crucial characteristic of Belgian federalism is that in principle there is no hierarchy between the various levels. So there is the allocation of competences is based on the principle of exclusivity. Either one level is competent or the other and if one level is competent it has full legislative powers. So the federal government or the federal level cannot substitute the sub state levels. But there is one important caveat and I think this is something which is which should be raised here also that is the impact of the European Union. So what we see in Belgium is that in areas where which are completely devolved for example agriculture the federal government has almost no competence in the field of agriculture. But agriculture the European Union has an important competence on agriculture and because of that the federal level even though it is formally not competent and is not as I said hierarchically higher than the regions but it remains a crucial player because it acts as a linkage to the European Union level and it coordinates the points of view of the various regions and it facilitates the coming about of a Belgian point of view for the European Council of Ministers. So in the European Council of Ministers Belgium has only one single unitary vote. It cannot split up its vote. So either the regions reach an agreement about that vote or if they do not reach an agreement they have to abstain and they lose their impact on the decision making in the Council of Ministers. And they always reach an agreement. There is only one example of a case in which there was no agreement amongst the regions. And as I said this is coordinated by the federal ministry of foreign affairs. So this is actually something that you have to keep in mind even for fully devolved matters the federal level remains a crucial player because of the Europeanisation. Professor Simmons. I think Mr Thamiani this is a really tough question that you have been asking. Thinking in terms of hierarchy there are three issues that came to my mind. The first is money. For example in Germany the lender are historically older than the federal level and they have a very independent basis of existence. However the federal level gets the lion's share of joint taxes so it is always in a stronger position to influence policies. If you really try to get to this hierarchy issue Scotland must get an independent base of funding. I've been talking about this yesterday. I don't know which is the best way either tax autonomy or fixed share of shared taxes. But this is a first step to get kind of independent leeway of action. The second is if you think in terms of federal architecture as far as I can see negotiations take mostly place bilaterally between Scotland and the UK level. So as Sean Muller said before one step to empower the regional level might be to strengthen horizontal linkages. Either issue specific or in a general level so that you would have a multilateral negotiation arena of all regionalised territories negotiating with a UK level. Of course this is very complicated because of the England issue because of the lopsided architecture. So this is nothing that you can solve today but you must just keep it in mind. And the third aspect is autonomy is helpful but co-decision is very valuable as well. So you must be very careful in deciding which areas you claim more autonomy and decision making and in which areas you might try to claim co-decision rights. We are very privileged with the Bundesrat. It is a very strong institution securing co-decision rights. But you might think about establishing video rights or committees or whatever so that in those matters that are really important to Scotland you try to get more co-decision. So these would be three aspects. I mean they are all very hard to get but to think about cracking this hierarchy. My list was similar so I won't go over the same issues but I did want to say that in Canada the key terrain for hierarchy is finances. So my advice would be that if you have particular areas of jurisdiction that you are responsible for you need to ensure that either you have full control of the money to fund those things or you have full control over the formula by which that money is shared. So whatever money does come is unconditional so that there are not strings attached because in the federal government in Canada in Canada's history the federal government has played a very big role in areas of provincial jurisdiction by creating conditions on grants that it gives to the provinces and over time they've become more and more and more unconditional. So it's a very small percentage I think I said in the written information that I shared that it was around 25% of the funding that provinces get from the federal government is conditional. The rest of it is unconditional but only about 15% of provinces money comes from the federal government. They have their own taxing powers but even amidst all of that it's still a hierarchy. That's because they need to have more horizontal decision making as Natalie was saying so that the provinces come together and the strategy has been so that they can have counter legitimacy to claim to speak on behalf of the country as a whole. So the federal government can't claim to know what's best for the interests of Canadians exclusively when the premiers can come together and say well we have come together and we have come to these agreements and we represent Canadians too. It goes back slightly and during the answers to Alex Johnson and Tavish Scott there was some discussion around the sort of legal basis for intergovernmental relations. One of the things that struck me is that where we have a difference here is in terms of the absence of a written constitution. Obviously the supremacy of Westminster means that the legislation at Westminster is not able to be challenged in the way that for example it would be in a constitutional court scenario. So I guess the question I would pose would be does that present a difficulty here in terms of embedding intergovernmental relations in statute and also how effective has that proven to be in those places where it is embedded in statute both in terms of the processes but also in terms of the outcomes. In Canada it's not embedded in statute. Any intergovernmental forms are not recognised constitutionally and parliamentary sovereignty always can trump any intergovernmental decisions so even if premiers and the Prime Minister or let's say ministers of social services were to get together and agree on something as they did say in 2005 on the issue of childcare funding. The next Prime Minister that is voted in was Stephen Harper and he chose to unilaterally cancel every childcare agreement with every province. So it would not be one that I would suggest that you emulate. Although similarly because we have a system here where no Parliament can legally bind its successor even if it were placed in statute there would be nothing to stop a similar scenario from arising in a future Westminster Government. Thank you. I don't see a real problem in you not having a written constitution. If I look at Germany those things are mostly not written into the constitution they are on a regular statutory basis if at all. So of course you are right statutes can be changed but they also develop a certain continuity and power if they work and I would recommend really to put this on a statutory footing simply because of thinking if you want to establish new routines, if you want to empower groups that have recently been weak then it helps to give us a statutory footing. I was just, I mean this may be misplaced but I was thinking of the analogy of the gender quota in Germany and you may be against it because you say well this is something against democratic principles whatever but it helps establishing certain routines and after a while when things are working you can get back from the statutory footing and it still works so I would definitely recommend it as a starting. In Belgium we have the constitution but the details of the institutional structure are written down in special laws which are, which is a kind of quasi constitution and all the arrangements for cooperation are written down in these special laws. But in my view the most important implication of, you already said it, that of us having a constitution and of these special laws being based on constitutional principles is the constitutional court because the constitutional court checks whether the laws are in conformity with the constitution and if you don't have a constitution it's difficult to see how you would have a constitutional court obviously. Rob Gibson. Thank you very much, good morning. We have been, had a proposal, we are thinking about financial equalisation between sub-state and state. In the proposals for the Scotland bill the new devolution proposals in the UK are expected to be accompanied by a no detriment principle. This means two things, neither the UK nor the Scottish Government should face a detrimental revenue or spending impact by the decision to transfer new powers at the point of devolution and I think we understand what that's about but neither the UK nor the Scottish Government should face a detrimental revenue or spending impact as a direct result of the policy decisions of the other government. If one government is adversely affected financially by the policy decisions of the other, the no detriment principle suggests that the offending government should compensate them financially. No one seems to understand this. From the countries that you study or are familiar with, can you point out any similar compensatory mechanism that resembles this no detriment principle? The major Swiss reform of Swiss federalism was built on this principle. What happened in 2004 or 25 years to implement the reform but when it finally entered into force the principle was this. Divisions are reallocated between the national and regional level. Some competencies become national, some become regional, so it's a kind of devolution but it goes both ways. But every competence was exactly monetarised so the costs of every policy shift was indexed and the tax sharing was adjusted accordingly. In the balance of things, the regional levels got more power and they also got more money to pay for those competencies but I'm not aware of any ongoing embedding of this principle that was just a one-off as part of a wider reform. In Belgium it's actually quite similar. Whenever a competence is devolved, the budget is also devolved and the regions or the communities obtain the means to execute this competence. But in the latest reform of the state, the sixth reform of the state, it was a way to economise on the federal level and they only devolved 90% of the means to execute the competence which was actually a way to force the member states to economise themselves. That's one of the main political issues currently in Belgium that the federal government, which is not hierarchically superior, cannot oblige the member states to economise. This trick by only transferring 90% of the means was actually a way to oblige the regions and the communities to economise. One founding principle of the German fiscal constitution is the principle of connectivity. It means that the level that is responsible for a task is also responsible for financing the task. So anytime that new task is decided upon or emerges or whatever or changes levels of government, there is a negotiation on how to finance it. What we do is we do not set those mostly in statute or we do not devolve tax autonomies but we renegotiate mostly the VAT shares. So this is the large sum of money where the lender in the Bundesrat come and say, okay, if we have to pay for whole day childcare and this is in our competence so the connectivity principle requires that we pay for it. We do not have the power to levy new taxes but if you give us one percentage point more of the VAT, we can take this money and finance the whole day childcare for example. So the VAT share between the federal and the lender level is the major negotiation pool for adjusting the finances and the tasks. The spillover mechanisms are actually worked out on the basis of agreement. It's always negotiated. Not only that, it seems as though that in the first instance there's an agreement that the devolved subjects have particular powers. Yes, we don't have anything like what you described initially in Canada but there are tax harmonization agreements between the provinces and the federal government in terms of what percentage of corporate tax and what percentage of personal income tax will be automatically given to the provinces. Basically it's collected by the federal government but then these harmonization agreements govern the percentage of those that would go to the provinces. Over time provinces also have introduced their own sales taxes so the equivalent of the value added taxes here as a way of also creating revenue and the federal government has a value added tax as well. But by and large over time more of the percentage of personal income tax and corporate tax has moved from the federal government to the provinces. It is not something that there's a lot of transparency around though although there are specific agreements in place and you would want to speak to an economist about the ins and outs of what those look like. Stuart McMillan First question is to Professor Benka just regarding your comments a moment ago on the connectivity principle. If in a land that has the powers to undertake a particular policy direction and they also have the finance, do they then have to communicate that to the Bundestag and to the other lender in terms of what they're doing and why they want to do it? You mean if one land autonomously decides to introduce a new policy and to spend money for it. Well basically this is in their own right. The money that is distributed between levels and among the lender is based on the logic of equalizing fiscal capacity and is not based on specific spending. On specific policies for example we have in Rheinland-Pfalz in one of the lender they have the policy that childcare places do not cost anything. So that parents can give their kids to childcare and they don't have to pay whereas in all the other lender parents have to pay for childcare. This is something that land can decide completely autonomously because they have their income, their revenues and they have the right to have fiscal equalization based on fiscal capacity however how they spend their money is completely in their own right. What happens nonetheless is in those informal circles that things are being communicated so they just inform each other based on an idea of generating best practices or something like that. But there's no formal necessity. The other way round however is that if the federal level decides on a policy which affects the lender in terms of personnel or new tasks or finances then it automatically becomes an issue that must be approved in the second chamber in the Bundesrat. So this is the really strong position of the lender because once they have to approve to getting new tasks they can at the same time negotiate on the financing. You mentioned in your paper the situation regarding the Bundesrat and you mentioned the issue of the self-rule and the trading. The self-rule and also the trading of self-rule or self-government for shared rule. Do you think that that trade-off is necessary or do you think that you can have both shared rule and also the self-rule? Of course we have both and the tendency to trade rights of self-rule against rights of shared rule is owed to the greatest parity of fiscal capacity among the lender. Personally I do not approve of this tendency but I can understand that those lender who do not have a lot of own resources because they have a weak economy and they get only a small share of income tax and corporate tax. They of course prefer to have the federal level finance or co-finance a lot of tasks because they just cannot afford on their own. The rich lender however they have more fiscal resources and they could do it on their own so there is a conflict of interest among the lender. In its tendency in the past years you can observe that the majority of lender preferred to giving tasks back to the federal level and getting rights of co-decision and co-financing by the federal level. If there is no other member wishing to ask a question at this point, yes of course you can. I am not sure that I am clear on the principle that is supposed to be introduced here and your answers on that issue. I understand at the moment of what is supposed to be going to happen here is that if one part of the UK, for Scotland for example, implements a policy which negatively impacts on another part then effectively we would have to compensate that part of the UK or vice versa. Does that happen anywhere else or it seems to be the case that you were saying effectively if a lender or a state had the rights and had the money it could carry out a policy irrespective of its impact on the surrounding states or cantors or lenders? Is that correct? I think it depends on the area. In general you are right that the regions in Switzerland are completely autonomous and actually the very idea of federalism is to have this competition so you want that regions for example lower their levels in education so they attract the people that don't need public but can afford private education. This by definition has to have a detrimental impact on the other regions so you want this competition so you should not compensate. On the other hand there is the idea that for major spillover effects cantons should get together and compensate each other but it is up to the cantons if they actually do it. In Belgium we have a special mechanism which is called conflicts of interest so if the policy of one region has a detrimental impact on the federal level or on another region the other region can invoke a conflict of interest then this is decided in the consultation committee which I referred to earlier. This is very closely related to the notion of federal loyalty which is written down in the constitution. We make this important distinction between conflicts of competence and conflict of interest so a region may remain formally within its competence but still harm the interests of the other region. There is a tendency in Belgium that this distinction between conflicts of interest which is essentially a political issue and conflicts of competence which is a formal legal issue. This distinction has become blurred and there is a tendency again in the constitutional court to also check conflicts of interests. This is also related to the extended competences of the constitutional court and the constitutional court more and more applies the principle of proportionality. A level should execute its own competence in such a way that it does not disproportionately limit the possibilities of the other levels to execute their own competences. In this way this distinction between conflicts of interest and conflicts of competence has become more or less blurred. I don't know if this is more or less clear, it's a difficult issue in Belgian constitutional law. Perhaps it's helpful to distinguish between the logic of curing negative consequences of preventing them. The no detriment clause, as I understand it, is an expost clause. After an action has taken place then something must happen to compensate. Instead in Germany the logic of co-parated federalism is trying to avoid actions that are to the detriment of others. So they negotiate in advance and so there is no kind of formula to compensate afterwards. This is also the case in Belgium. We also have all kinds of preventive institutional measures to prevent conflicts of interest. So the various levels have to inform one another, have to collect the advice of the other levels. But this is in Belgium largely a matter of formalities. It does not really play an important role. So all the government just makes sure that it abides by these formal requirements, that it informs the other levels but it doesn't really have an impact. So the curative devices are much more important in Belgium than the preventive ones. I have one final question and I know that I am pushing it because we are in time but right at the beginning you all said that parliaments around the world are generally very weak and not involved in scrutiny of intergovernmental relations. I will just set you up for the next panel and see your witnesses there in the public gallery. The next panel is the two most senior civil servants responsible for intergovernmental reform. Should their review change that situation about parliaments and scrutiny? Should their review ensure that we don't make the mistakes that others have made with the absence of parliamentary scrutiny and intergovernmental relations? I can just ask, should their review of what? The review of the memorandum of understanding, they are reviewing the whole process of intergovernmental relations. What we will be asking them probably in the next session looking towards them is how do we consider parliament's role, parliament, the role of committees in that scrutiny of intergovernmental relations? How would parliament play a role in that? You have suggested earlier, all of you, that parliaments and committees and all the structures are either weak or don't play a role in that at all. Should their review seek to make it different here in our relations? Well, I guess that's up to you for yourself to decide. It's not up to us to say what you should do, what kind of structures you should implement. It's an academic debate whether it's good to have parliamentary involvement in international or intergovernmental relations. I'm also not sure that having meetings public would help finding agreements. There is a whole literature that says it's helpful to have meetings in secret because people can be more open and can see compromise. So it's a political question and you're the politician I think you should answer. That wasn't as helpful as I hoped it would be. Professor Martin. As a political scientist I'm actually quite pessimistic about that because of all kinds of factors the impact of parliaments is decreasing. It is largely a theatre. I know that Jeremy Corbyn wants to make it less of a theatre as he said yesterday, but it is really a theatre. At least in Belgium parliaments have a minimal impact on policy making. Another aspect is the Europeanisation. You see that also at the European level. They try to cope with this problem, for instance through the early warning procedure in the Treaty of Lisbon. But this has very, at least in Belgium, this has very little impact. Parliaments try to grasp what's going on at the European level, but they do not have the expertise, they do not have the personnel. It is so complex, so technical that the involvement of politicians in Parliament is doomed to be marginal. Stop, stop, stop. Professor Benka, you can't tempt you into this. You have made some comments earlier. Yeah, I think I said everything on that. On that pessimistic note from Professor Madden, thank you very, very much for your attendance here this morning. Your engagement last night, those of us who were able to attend enjoyed that when many of your colleagues were there here in the Parliament. That informal engagement was appreciated in all of the time that you have given us here this morning. Thank you very, very much indeed. We will pause at this point until we clear our witnesses and set up our next panel. Thank you very much. We now return to agenda item number two on our agenda today, which of course is taking further evidence on why the reform of intergovernmental relations from the UK and Scottish officials. We have with us this morning Philip Rycroft, head of UK Governments Group, Cabinet Office, UK Government and Ken Thompson, director general strategy and external affairs from the Scottish Government. Welcome to you both gentlemen. There is no opening statements and in the interest of time we will press on and open up with the first question to Mr Rycroft. You are of course the UK Government's lead official responsible for the review of the memorandum of understanding and the apparatus of joint ministerial committees. It might be helpful to us this morning if you could outline why the review was set up in the background, what the terms of reference are for that review and how indeed the review is progressing. Thank you convener. All good questions. Obviously we have had a system of intergovernmental relations in place since devolution in 1999 with GMC machinery supported by the MOU. In fact quite a complex set of concord outs and MOUs covering a number of different parts of business. That has served its purpose and in some views has served its purpose well over the years. Clearly we are coming to a major juncture in the devolution settlements. There are proposals before the Westminster Parliament for further devolution for Scotland, a commitment from the UK Government for further devolution to Wales and a significant change in the Welsh settlement. Obviously following the Stormont House agreement changes also in the Northern Ireland settlement. The devolution settlements are changing. The GMC plenary that was chaired by the Prime Minister and the Deputy First Minister of the Northern Ireland Assembly in attendance last year agreed, as they always do by consensus, that this was an appropriate moment to review the machinery. That was the remit that we were given. That remit was passed to Ken, myself and our colleagues from the Welsh Government of Northern Ireland Executive. That is the remit that we are taking forward. It is a very broad terms of reference. We are not confined if you like by what we consider in that space. The way that we have taken that forward hitherto is through a series of meetings that we have held at official level. As it happens, the latest one was just yesterday where we covered this territory again. At some point in the next few weeks, we will have to consult our own ministers on the way forward with this, ultimately looking for ministerial agreements on this, hopefully before the end of the year at the GMC plenary. I hope that that gives you a brief overview of where we are at. It is an interesting process, but it does mark—this is recognised by all the Administrations—a moment of change in the devolution settlements and an appropriate moment to review how the intergovernmental machinery works. In that broad remit that you do have, have you given any consideration about how you would inform parliaments on its committees about the depth of work that you are engaged in, the volume of work that you are engaged in and, indeed, who you are engaging with outside ministerial officials or experts? If I answer that question in the general terms about what people see and understand about what has gone on in the intergovernmental relations space, it is probably true to say that parliamentary scrutiny across the peace has been relatively light over the past few years. I suspect that that will change, certainly from my perspective, working in the Whitehall context. A lot of interest in this, for example, from the House of the Law to Constitution Committee and from the Political and Constitutional Reform Committee in the House of Commons. I anticipate that we will be facing increased scrutiny on intergovernmental relations in the months and years ahead. Clearly, as some of your previous speakers have said, it is a matter for the parliaments themselves, how they hold their executives to account in this space. But one of the things I think we do need to think about is in order for effective scrutiny to take place, parliaments need to understand, as indeed does the wider public, what is happening in intergovernmental space. It is maybe worth making the point at this stage in our discussion, is that the JMC itself sits at the apex of a whole complex of intergovernmental working. That intergovernmental working in 101 different aspects and dimensions is absolutely critical to the good governance of the United Kingdom as a whole. Day-to-day, I will contact between the devolved administrations and UK government and between themselves to ensure that business policies can be taken forward effectively. So I think there is advantage clearly in people understanding the depth and the range of that interaction between the governments and how that supports the good governance of the United Kingdom. One of the things that we will have to look at is how do we make that real? What is the appropriate level of information and transparency around dealings within intergovernmental relations space? That is one of the things that we will be looking at, but ultimately it will be for the ministers of all four administrations to decide how they express that and what agreement they reach on that when they look at this in the round. Do you believe in that process that you have met your objective and that both Governments need to work together to create a more respected team and a productive, robust, visible and transparent relationship? Do you believe that you have achieved that objective as yet? A couple of great points, convener. Incredibly, of course, there are not just two Governments. There are four Governments that we are thinking about in this space, so obviously the Welsh Government and the Northern Ireland Executive are also involved in these things. Pass practice is probably not the best guide to future practice in this space, so as I see with the changes in the devolution settlements, I will just take two of the most salient examples. If and when further powers over tax and welfare are devolved to the Scottish Parliament and the Scottish Government, that will intensify the requirement for very close working between the UK Government and the Scottish Government. What was practice in the past in that context is probably not a good guide as to what practice should look like in the future in terms of the visibility, the understanding of the way in which those relationships operate and how they deliver value and how, indeed, the operators in that space are held to account by their respective parliaments. You do see that there is a concern expressed in the committee's report that at this stage, when we are starting these engagements, we are establishing practice and precedent and if it is not already established. That has not, by your current remarks, considered in any real way how we would involve those parliaments, those parliamentarians and the Scottish Parliament. The committee structures about how not to be involved in the talks, not even to be having public hearings but knowing that the talks are taking place, aware of the broad agendas and the issues, the people who are giving evidence and the people you are engaging with. There is none of that happening at all now, so that gives us as parliamentarians, we do not want to take the pessimistic example of it, we do not want to make ourselves redundant, I do not think that that is going to happen, but you have not given an indication yet in your answers that you have given any real consideration about how you play these parliaments and parliamentarians in. You might do something in the future. You are talking about input into the process of consideration. I am talking about even being aware of the number of meetings that union officials attend about the number of calls that they make, the issues that they are dealing with, the agendas that are being discussed and the issues that are being discussed, the basic information that we are talking about here. If I may respond to that, clearly there has been and will continue to be a good deal of input from parliamentary committees and indeed the fact that we are here today shows obviously that we are very alive to the input from the parliamentary context and that has been picked up by many other commentators in this domain. How do we make sure over time that inter-governmental relations, the interface between that parliamentary scrutiny is appropriate? Obviously we are at the moment engaged in a process of discussion at official level. We have been asked to do that by our politicians through the JMC and that process has to make its way forward. I do not think that it would be appropriate to have that negotiation in public space. I think that we do need that space to have that discussion but ultimately it is our job not to make the decisions about what happens here but to advise our politicians on how they may take this forward. I think that the decisions on the structures for the JMC, the review of the MOU on inter-governmental relations more generally will be for the JMC itself and we are preparing the way for that. We are not in a sense delivering the outcomes at official level. Maybe the parliamentarians will be given some consideration about how that should go forward but until now we have not been asked to be involved at all in that process. Ken Thompson, do you want to add anything to that before we go to a more open question? Not to repeat what Philip has already said but I think that on your last point, Deputy convener, just to distinguish between the work that Philip described that is putting the JMC in a position to take decisions on this, that is one strand of this. The other strand I think is the actual work of inter-governmental relations day to day. As Philip said, a lot of that happens in a fairly informal way in context day to day between officials. That is part of the work of government and therefore it is open to scrutiny by our respective parliaments. We are accountable to our ministers and they to their parliaments, including in the case of the Scottish ministers to you. There is the opportunity for committees of the Parliament to scrutinise the work that Governments do between Governments as well as within Governments through the many ways in which that can be done, including hearings such as this. Just as the work of Governments is evolving as the devolution settlement evolves, I think that the nature of parliamentary scrutiny or the content of that scrutiny can also evolve. My point back to you would be that the opportunities for that are already there or the structures are already there through the accountability of ministers to Parliament. Stuart Maxwell. I want to pursue a little more some of the questions around the memorandum of understanding. In terms of the work that you are doing, at what stage are we at in the process, first of all? Is the discussions and work that you are doing likely to revisit the principles of IGR? Can we also see perhaps changes, for example, in the processes that are currently undertaken with regard to intergovernmental relations? Can you give us some detail around where we are at the moment and what exactly you are looking at? Yes. The MOU in its current form largely reflects the document that was drawn up before devolution happened. To that extent, we now have the advantage of doing this review of all those years of experience of actually working between Governments. It remains a live document and a live set of processes, so we are not writing something in the abstract from either the past experience or current issues. I think that we now have a pretty good idea of how the principles that are in the MOU operate in practice and how they need to operate, so mutual respect between Governments, good communications, how we resolve disputes and so on. Like Philip, I do not want to give a running commentary on a discussion that ministers have not yet engaged in themselves, given that the GMC plenary has not happened. Broadly speaking from the fact that ministers from both Governments and all Governments have continued to evolve and adapt the MOU in its current form, you could take it that they agree with the principles that are in there. I think that what we are largely doing is saying how can those principles be reinforced for the changing nature of the devolution settlement, some of which will be quadrilateral for the four Governments but increasingly a lot of it will be bilateral because of the particular nature of the changes that are coming on tax, already coming on tax and may well come on welfare. I do not think that there is a lot of disagreement, in fact there is a lot of consensus about the principles set out in the MOU. What we have the opportunity to do is look at the detail of how that works in the light of experience and looking ahead to the changes that are going to come on tax and welfare in particular. I think that you are effectively saying to me that you are not re-examining the principles of the MOU, that is currently in operation, you are looking more at the processes. We are looking at both. You would expect us as part of a review to look at the whole of how that works. Maybe I can make the same point in a slightly different way that there is the culture of intergovernmental working and there are the processes and rules and both matter. The significance of the rules and the principles in the MOU is not just that they govern the work of GMC committees but that they set the framework and the tone for the way that Governments interact day to day on a whole range of things. Broadly speaking, when I am describing to my colleagues how I think that that should work, what I say is that it is important for Governments to understand each other's positions even when they do not agree on them. That basically underpins the nature of intergovernmental working. If I may add to that, we have looked at—obviously starting point for this is thinking about the principles that underpin intergovernmental relations in the sense that it is credit to the framers of those principles in the first instance that they have stood the test of time, as Ken has said. I think that those principles have worked well and obviously again we will be putting in advice to our ministers on what we think of them now but the focus has to move on from the principles, how do we make sure intergovernmental relations work and work effectively. It is worth just being aware in that context that the GMC is a political forum. It is a forum for political discussion between Governments who will not always agree on the way forward. Our job is to give advice to ministers individually and ultimately collectively on how we think we can adjust those processes in order to ensure that intergovernmental relations remain effective in the light of that. It is not just about the change in devolution settlements but that does encompass principles but also encompasses process and practice. I will wrap up my two questions in one to speed things along. My first question is about whether or not the MOU should go on a statutory footing. Effectively, it is legally non-binding at the moment. Is there any discussion going on about that? Not on the basis that effectively this would create inflexibility in the system but, as you probably heard some of the discussions, it would help to create transparency and legitimacy to the process. I wonder if there are any barriers to putting the MOU and its procedures on that kind of statutory footing. My second question is about how it operates. Does it operate on the fact that the Governments—all those involved in the process—operate on the basis of an equal footing, mutual respect and trust, or is it on a hierarchical basis? A brief combined answer. The GMC operates by consensus, so there is no casting vote, if you like. On embedding it in statute, the current MOU is not a piece of legislation. You have heard us both saying that, broadly speaking, we think that that has served the four Governments reasonably well over the period of devolution. There are some statutory aspects to the way that the two Governments, in the case of Scotland and the UK, relate to sit-out in the Scotland Act. I do not want to speak for my ministers but, so far, I think that experience shows that it has been possible to promote good intergovernmental working, resolve disputes where they arise and make clear what is happening without having to put the whole process on to our statutory footing, which I think would probably change the character of it and make it a bit less flexible and a bit more—it is a political forum, as Philip said. Politics issues tend to get resolved by politicians rather than by judges. That would be my reflection on that. You have the side advantage, on as you have had quite a long debate about with other jurisdictions where intergovernmental relations is on different footings, clearly across the table that you were talking to earlier on, not on a like basis. They all vary in their ways. We have had a look at practice around the world. I do not think that we have spotted a very strong correlation between the extent to which intergovernmental relations is tied down in statutes and its effectiveness. I think that, ultimately, it does come down, if you like, to the political will that imbues the way in which intergovernmental relations operate. We are aware that there has been, in his opinion, expressed from those who have been looking at intergovernmental relations, proposing that it is put on a statutory footing and that that is something that we will have to advise our ministers on, and that is what we will do. However, at the moment, we are not seeing the evidence very strongly that, in the UK context in particular, that would necessarily add to the effectiveness of the processes that we have. I should pick up a point about respect and mutual respect. The Prime Minister has been very clear on his agenda of respect, and that is something that informs the approach that we take into government relations. The process that we are running together, I think, reflects that. When I say together, together with our colleagues from the Welsh Government and all the non-executive, this is a process that will move forward by consensus, recognising that respect between the Administrations. Tavish Scott, followed by Linda Fabian. Thank you very much, convener. I totally accept your point, gentlemen, that IGR and how it evolves must be in a space that allows that to happen. As a convener, I pushed you on. This is as much about parliamentary scrutiny of that process, not of what is happening in the nuts and bolts of a negotiation, but how Parliament is both in Cardiff and in Edinburgh, and I am out of London, as it were, keeping an eye on that. Can I try two examples? Obviously, both in Edinburgh and in London, there is a lot of government activity around the refugee crisis in Europe at the moment. Was that subject to a JMC process, or has that all happened so quickly as we were hearing earlier on from Germany, that it was just done by ministerial phone calls and so on and so forth? The second one, which should be more of akin to the discussions that Linda and I had in the Smith commission, when we discussed the month-by-month agriculture council, for example, where there has just recently been a European agreement on 500 million euros described as the Hogan package. That would have been subject to a discussion between agriculture ministers across the UK. Parliamentary scrutiny of that, you might well say, Mr Thompson, that you'd be right to say this. I can table parliamentary questions and I can ask Richard Lochhead at question time and so on and so forth, but no committee, including Mr Gibson's one, has yet had a chance to have a precise look at that. That's a long way of saying, I don't think that we're there yet in terms of parliamentary scrutiny of what currently exists, never mind what happens after the Scotland bill becomes law. To respond briefly, then, Philip might want to come in. There are two issues. One is when events move fast, and the other is how departments scrutinise the outcome of a process of intergovernmental discussion. On the first, I should say by way of preface that I couldn't speak to the detail of either of your specific examples, but to give you a general answer of how these things work informed by my knowledge of those two issues. When something blows up fast, then the nature of the relationship between the two Governments is that officials and ministers know each other that you can lift the phone. It's possible to have those conversations. I'm sure that people on both sides would think that sometimes they're more effective, sometimes they're less effective, but when I think of our experience, such as the refugee issue, such as outbreaks of swine flu or a very good example, the Glasgow airport bombing, in each of those cases, which I was more directly involved in, there was very good intergovernmental contact and communication and co-operation on a fast moving issue. That's it by way of illustration that this doesn't all go through the formal process of a GMC plunary that meets once a year. On your example from a European negotiation, again, I wasn't directly involved in the lead-up to the particular negotiation that you're describing, but in general the GMC Europe Committee is the place in which ministers from the four administrations come together to discuss and agree the UK line, which is then developed and delivered in the UK. That's the process and the structure that allows the Governments to work together on an issue of that kind. Again, I'm sure that there will be occasions when the four Governments find that process more or less successful or helpful, but it exists. It's worth noting that, even when the GMC plunary went into abeyance for a time, the GMC Europe Committee remained functioning. When things get used, that shows you that there's a use for them. Finally, on your point about parliamentary scrutiny of this, I think that I'd repeat what I said earlier that if you regard it as not different in some way but simply part of the work of Governments, then it's possible for Governments to scrutinise it in the way that Governments scrutinise the work of Governments generally. One reflection is that perhaps it's not so clear to parliamentary committees who tend to have a portfolio focus where intergovernmental relations would set. It's interesting that you're having this discussion and inviting us to give evidence because this committee does have that kind of by its nature. It might also be speculating something that the convener's group would ask the First Minister about, given that it's an important part of her work as First Minister to relate to the other Governments in the UK. The mechanisms are there, but I think that there's scope for them where they're used to evolve as the bandwidth in this relationship gets bigger with the changes in the devolution settlement. Not a huge amount to add to that. Again, like Ken, there are two distinct issues here. The effective working of intergovernmental relations on a day-to-day basis, particularly under pressure of time as with the refugee crisis and an agriculture council that was dealing with what was deemed to be a bit of a crisis situation in agriculture. Certainly from the council perspective, obviously GMCE operates, tends to meet before the big European councils, but if you go into agriculture fisheries space, there is always a procedure of consultation between the four administrations in the advance of councils where they discuss the UK line, put that together as quite an elaborate procedure, well honed now over time and worked pretty effectively. Obviously, as Ken indicated, there isn't always 100 per cent agreement, but the process is there to seek to reach agreement, and my assumption is that that would have operated in this case. Some things do move very fast, and sometimes there is a bit of a disjuncture in a system, particularly if an issue is blowing up in a part of the system where they don't have the habit of interaction. My colleagues on the agriculture and fisheries side used to deal with that, because of the very close intersection of the devolved and the reserve settlements in agriculture and fisheries space, but in other parts of the system, both here and in the south, people won't have that habit of working so closely together. One of the things that Ken and I colleagues are having to think through is the more we could do, through our auspices, of those who are charged with responsibility for thinking about intergovernmental relations generally, is the more we can do at official level to step in and to support the respective governments to get through those difficult moments if that's required. I think that's one of the things that we need to think about. In terms of parliamentary accountability, I would make the distinction between, if you like, the accountability on day-to-day business, where one of the very legitimate questions to ask is, was that piece of business transacted in a way which demonstrated effective working between the governments, and if that is not demonstrated, that is drawn out. So that is normal business, and all the mechanisms that you have at your disposal and in the Westminster Parliament to hold the governments to account. But there is a separate issue about accountability for IGR in the round, and in a sense that brings it more into our domain, and how do we make sure, in essence, that the visibility of intergovernmental relations is such both to Parliament but also to a broader public. I think that people can effectively hold us to account. I think that's one of the things that we need to think through and put advice to our respective ministers on. I think that everyone in the committee recognises that intergovernmental relations go on day-to-day and deal with things as they come up. However, we have the memorandum of understanding, which is being reviewed at the moment, and within that we have the joint ministerial committees, which is very much set structures of intergovernmental relations. It's the part that people are then able to look at and see where their respective governmental ministers come together to discuss and promote joint working. I feel very strongly that in order to really do a review that's meaningful, we have to be very honest about what's gone before. I have to say that the comment that the joint ministerial committees have served well over the years has been quite astounding. I suppose that it depends on the perspective that you come from and who you think has been served and whose interests should be served. For the first eight years of this Parliament, the joint ministerial committees hardly met at all, apart from the European one. I have to tell you from my own experience that when I went as a minister to a European joint ministerial committee, Scotland was under any other competent business. That was not serving Scotland well in any way at all. I don't particularly want to go over that old ground. All I'm saying is that there's fine words spoken about mutual respect and parity of esteem. If that is the right time to be looking at those things over again, let's be very honest about where we've come from and where it has evolved over the years. It used to be that this Parliament had to ask parliamentary questions to even find out when joint ministerial committees were being held. Why shouldn't our Parliament and a particular committee know when things are on the agenda for discussion and at least have some kind of report back from it? As I say, this is not to be anybody up, I'm just talking about the facts. Let's be very clear where we start from, how we've evolved and what we're trying to achieve from now. I hope that we can do that. I'm not sure that there was a precise question in there. The comment directed at me about the way that things have worked in the past. It clearly looked out from the broader review of intergovernmental relations. If you look at the way in which the MOU and the GMC supported that, I will of course always find examples of where things have gone wrong. You can have a view of the overall prospectus here, which is not favourable to it, but in the main intergovernmental relations have functioned. The number of formal disputes that have come through the system, for example, has been relatively small, only four, to my knowledge, over the last few years and those have been resolved. One took a little bit of time but those were resolved relatively rapidly. The point is, at the point that you're making, whatever the past, we are at a junction now where we have to look forward and we can learn from where, if there are issues that people have been concerned about, about parliamentary scrutiny, about transparency, that's where, in terms of informing our work, we need that input. Indeed, we've had a lot of that input. Again, it will ultimately, for ministers, decide how they reflect that in the structures and the new ways of working that they agree if they do so. That is part of our job, informed by the deliberations of this committee and others as well. Thank you. Can I ask one other question, please, convener? Oh, I forgot, I forgot about Mr Johnson. How could I? I should have guessed quite a bit. I just wanted to say two things, reflecting on what you said and the experience of being at some of these committees myself. I wouldn't want us to give you the impression that these are never frustrating occasions. These are meetings where politicians come together who sometimes have very strong differences of view. From your own experience, that can be frustrating and I'm sure that others have felt the same. I think that what we're saying is that when there is a need to, when there are those disagreements, the GMC process, broadly speaking, recently has provided the forum in which those issues can be aired. I want to go back to your point about the GMC from some years, the GMC plenary fell into abeyance. I think that I recall from an earlier evidence session discussing this with you and making the point then that up until 2007, in the period from 1990 to 2007, there was always a political party in Labour Party in power, both in Westminster and in Holyroods, here in coalition. Some of the discussions that we're talking about then went through party political channels. There was a significant moment of evolution in the practice of intergovernmental relations in 2007 when there was no longer that same colour in power in both places, which strengthened or caused the operation of formal intergovernmental machinery to have to strengthen. The other channels weren't there. Broadly speaking, I think that that has been a good development in that whatever the other channels there are, it's important to have channels in which the two Governments engage directly as Governments. It's not been a uniformly similar experience in that whole period and it's always with its frustrations but, broadly speaking, it does provide the forum in which politicians can get together to try to work out the answer to the differences or at least understand each other. I think that that brings us back to the point, convener, that it is the structure that is there that people, parliaments and people know that these meetings are taking place. So it's very important that there's an allowable degree of transparency around them. Just to move on from that, something that our panel members raised and other academics at an event last night raised was about the importance of discussion amongst the devolved legislators. I'm not sure there's anything formal about that has been set up in recent years. I don't know if it wasn't there before. There were obviously informal discussions around GMCs, etc. Various things like the British High-Rage Council and the stuff like that. Is that something that you're looking at under the MOU? We've caught Dr Mueller's answer to you. That's a political question and you're the politicians. We quite like that answer. To give you a serious answer, I think the focus of our work is on supporting our ministers and how they decide how Governments should relate. There's clearly a set of issues for parliaments about how they relate, but I think we'd be exceeding our brief if we advised parliaments on that. You have your own sources of advice. Earlier, you suggested that that's something that parliamentarians need to look at seriously, to fulfil that responsibility and to ensure that we are using all the mechanisms that are available to us in a new situation. You did defer to that earlier. Of course, that was one of the things that came out of the Smith commission proposals, the bilateral relations between parliaments or trilateral, quadrilateral. Clearly, that is space for the parliaments to take forward as many as we can do to facilitate that. I'm very happy to do it, but it's not our place to lead on that work. It's something that we can reflect on, I think, in terms of what—Mal, come. I'm interested in dispute resolution. I think that Philip Reichloff referred to four instances where the protocol, I presume, had been invoked, but we don't know how that works. Could you say something about what happens when there is a dispute in that way? I can say briefly about it. Certainly, there is a process set out in the MOU. This is part, if you like, of the consensual workings of the GMC, that if one of the administration's fields is aggrieved about a particular issue, it has the ability to invoke the dispute avoidance and resolution procedures, and then there is a whole set of procedures to go through to escalate that as necessary. I think—I'd make two points about this, I think, in general terms. One is, in a way, the clue is in the title to that relevant section of the MOU, dispute avoidance and resolution. A lot of the work that we're doing is informed by, I think, the collective wish of Governments to avoid disputes where possible. How do you avoid disputes? You avoid disputes between good working relationships, between good respectful working relationships, between early discussion about issues that might come in up, so that there is the time and the space to try and resolve issues. Before they get to the point of formal disagreement or formal dispute. I think the second point I'd make. A lot of people are looking at dispute resolution, clearly one of the things that's on our agenda, and asking whether dispute resolution should be made more formal. It's a bit—the other side of the making the whole process statutory. I think in that—clearly this again is something we're going to have to look at and look at quite hard. I think the point I'd make at this stage is, as with the wider machinery, this is an intrinsically political process. The more formal you make dispute resolution, the risk is you begin to constrain, if you like, the scope for political intervention to resolve something. If I could refer to the Deputy First Minister's discussion of this when he was at this committee earlier in June, I think, talking about the dispute around the Olympic Barnett consequentials. He was saying that he took an awfully long time for that to be resolved, which is true, but he also said that the resolution came when there was political will to make that resolution. I think that that is a very important point that in looking at dispute resolution, we don't overly constrain the capacity of the politicians to find the resolution to the issues that arise. We're all thinking about, at the moment, is the fiscal framework. Would that go through the joint ministerial committee? I mean, there's been suggestions that there should be some—if there isn't agreement—some independent arbitration around that. I presume that would be resisted by the UK Government, maybe not by the Scottish Government. I don't know what you think about that. Fiscal framework falls very squarely into bilateral space, and this will be a bilateral relationship between the UK Government and the Scottish Government. As you are well aware, there is negotiation in process at the moment. Again, you've had the opportunity to speak to the Deputy First Minister about it some weeks ago now, but that negotiation and that process continues. As with fiscal relationships on a hither 2, clearly there needs to be an ongoing relationship between particularly the Treasury and the Scottish Government to manage those issues on an annual as well as a multi-annual basis. All of that becomes more complex if we get to stage a further devolution, particularly through the further devolution of tax and welfare powers. How that is managed once we get to that point is something that will have to be looked at in the context of the fiscal framework negotiation. Again, I'm not at liberty if you'd like to lift a veil on that, but how those processes are managed effectively on a year-to-year basis, including dealing with any issues that may come up between the two Administrations, is absolutely something that will have to be dealt with in that context. If there is an agreement between the Governments, will the process that you described just be invoked and it will be through the joint ministerial committee, or will there be any other way of resolving that? I can't give you an answer to that question because that clearly is something that is being discussed in a separate forum between the two Governments. They'll have to work out in that context how effectively to manage issues around the fiscal framework. The only point that I would make in that is that, as I say, these are political processes and, ultimately, the Prime Minister runs the UK Government, the First Minister runs the Scottish Government, and they are, ultimately, if you like, responsible for the smooth working of relations overall. How that is expressed formally in the structures will have to be worked through in the course of the discussions around the fiscal framework and, indeed, intergovernmental relations more generally. I was going to respond to your earlier question and I'll come to arbitration. Philip made the point that the relevant section in the MOU has had a dispute avoidance and resolution. Typically, disputes arise firstly because maybe the right people are looking at the issues, so there's a problem of attention. Quite often, through the less formal process, including Philip ringing me up or me ringing him up and saying, we need to make sure that people are looking at the issue because otherwise it's heading towards a dispute and that often resolves things. The second thing that the dispute protocol operates to achieve is that people understand each other's positions and where they are shared interests or not. The way that the protocol is written is to get some good work done on that. The third is to try to put a timetable around things to make sure that things don't drift. Again, the timescales are set out there, they're not binding and, in the case of the Olympics dispute, it did take longer than the timescale set out there, but our solution was eventually found. All of that is by way of saying that I don't think that anybody's in doubt that the fiscal framework is receiving attention and is getting good work done on it and there's a very clear timetable set out for that in the way that the Deputy First Minister has commented about the importance of the fiscal framework outcome for his advice to the Parliament on the legislative consent motion on the Scotland Bill. All of that, not to comment on the substance of that negotiation, but it's certainly getting a lot of attention and hard work at the moment. As yet, nobody has thought it necessary to invoke the protocol that's in this document. You mentioned arbitration. The protocol was recently amended to include the possibility of independent input. I may be wrong on this, but to the best of my recollection, that hasn't happened in a dispute so far. It's therefore an open question whether that independent element could include arbitration or not. I think that speculating is likely. If the minister is involved in the dispute and wanted it to, then it could. That would have to be a decision by consensus. My experience, echoing points that was made earlier, is that these are essentially matters of politics and politicians are good at working out an agreement if there's an agreement to be found or not doing that if there isn't one to be found. Would arbitration help? There's a range of views on that. I think I commented on that the last time I was in front of you giving evidence and I think I would say the same thing this time. That's really interesting about the external input. I think it was the phrase used because that's obviously not something that perhaps I don't know whether that's... I should know that. I don't know whether that's... Is that written in the member answer? Right. I hadn't seen that. That's really interesting because I suppose my final observation would be that all the issues that you've described are very micro by comparison with the fiscal framework. It may well be that some external input might be useful if there are problems with that. If I gave you one further example, the Edinburgh agreement, which nobody would describe as a micro agreement, was reached by a negotiation between the two Governments, essentially similar to the one that's happening at the moment on the fiscal framework. It wasn't found necessarily by either of the two Governments to invoke the dispute resolution procedure because we did actually reach an agreement through the ordinary course of intergovernmental working. We're not at the point on the fiscal framework of it being a formal dispute. We're in a negotiation and that's pretty normal. If there's no other members, I'm just trying to complete a range of our questions and no other members. Referring back to Mr Iker, you mentioned that you did some comparative work about intergovernmental agreements across other jurisdictions. You will have found that in some countries intergovernmental agreements are subject to the consent of Parliament and sometimes there's an opportunity to suggest amendments to those agreements. Indeed, I suppose that the linkage to that is the legislative consent motions that we deal here. There's a broad mechanism that we do use already. Given that we will be dealing with more and more shared powers in terms of welfare and taxation, have you considered in your discussions that there may be a case for extending the role of Parliament? In giving consent to intergovernmental agreements? The whole parliamentary nexus is something that we are having to consider. It is points that have been raised by the committee, by Smith and by numerous others. How do we manage that relationship between the processes of intergovernmental relations and parliamentary procedures is something very much within our purview. I think the question of if you like a formal involvement, my guess is that where you're seeing parliaments able to make proposals for formal amendments to procedures is where those procedures in themselves are bound into statutes. Those two things would be hooked together. If we don't end up in statutory space, that requires a rather different relationship with the input from the parliaments over time. I think the point that I'd make on this is that we're working this in real time. Obviously the legislation that is changing the settlements is still going through Parliament and in some cases is still to be introduced to Parliament. Experience of the new settlements will develop once they're implemented, if they're implemented, and as they move forward. I think that that takes us into the dynamic relationship between parliamentary accountability, the opinions of parliaments individually and collectively about how this process is working and the input of that into governments and how governments are held to account and therefore how intergovernmental relations evolves and develops over time. You'll have noticed that the MOU itself, the MOU that we have at the moment, has been amended and revised several times over the last few years, which reflects the dynamic of intergovernmental relations under the current settlements. I think that the point that I'd make on this in terms of parliamentary input on this, it doesn't seem to me that one should restrict oneself to looking at a fixed point for parliamentary input, but to see that as part of the process of scrutiny of accountability and that proposals and suggestions for improving intergovernmental relations from the parliaments should be something that has been put to governments as this develops and as we get more experience of intergovernmental relations in the context of the new devolution settlements. Broadly to agree with what Philip said, it echoes my earlier point that this is part of the work of governments and therefore it's open to parliaments to scrutinise that. That could perhaps feature in the scrutiny that individual committees make of ministers and civil servants to ask the question, for example, on the refugee crisis, how good was the intergovernmental working between the two governments on that issue. I think that the mechanisms for scrutiny are there and the practice and use of those will evolve as the settlement evolves. Will there then be an opportunity for this Parliament and other parliaments to see a draft of their revised memorandum of understanding before sign-off? I think that that would be a question for our ministers, but we will have the opportunity to take that point back to them. The next question and final question is, would you welcome proposals from this committee and Parliament to your review process on a formal evidence basis? One of the things that we have been very conscious of is the input from a number of sources over the past few months, including parliamentary ones, including some consideration of this committee already. Obviously, the Smith commission process, the SILT commission process, I had words on this. I mentioned earlier on the Lords Constitution Committee, the House of Commons Political Constitutional Reform Committee, quite a lot of the academic community that interests itself in this area has offered their wisdom as well. There is a rich evidence base here, but you have an advantage of coming into this with your current inquiry when the broad structure of the evolving devolution settlements are becoming clearer. Speaking on a personal point of view, the fruits of your discussions would be enormously helpful to inform our work as we move forward. We haven't reached any conclusions yet, so our door is open and hopefully our minds are open to any input that we would wish to make. I think we'll take that as a yes. Thank you very much for your attendance here this morning and the session that we had. I was previously agreed that I think now we're going to private session. I'll give a few moments for our witnesses to leave and we'll make progress there and I might even get a coffee and a paste.