Harvard Law School
Jean Monnet Chair
Seminar and Workshop on Advanced Issues in Law and Policy
of the European Union, NAFTA and the WTO
Professor J.H.H. Weiler
Harvard Jean Monnet Working Paper 8/00
The Role of Concordats in the New Governance of Britain: Taking Subsidiarity Seriously?
Harvard Law School Cambridge, MA 02138
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Printed in the United States of America in 2000
Harvard Law School
Cambridge, MA 02138
The Role of Concordats in the New Governance of Britain: Taking Subsidiarity Seriously?1
*Jean Monnet Senior Lecturer, School of Law, University of Edinburgh
Devolution has changed fundamentally the system of governance within the United Kingdom. The devolution of legislative and administrative competencies over a wide range of policies to Scotland and Wales necessitated the introduction of arrangements for policy co-operation and coordination involving UK Government and the devolved administrations. These arrangements are set out in concordats. In this article we consider why the concordats were necessary, and critically analyse their role as devices for maintaining coherence in, and legitimacy of, UK governance in the face of the challenges raised by devolution. We then extend our analysis of concordats to an examination of the role that sub-national authorities generally might play in multi-level governance systems. We do this by concentrating on the subsidiarity debate in EU governance, and consider whether this concept can be applied meaningfully to inform the structure of policy assignment in that multi-level governance system. The lessons gleaned from a study of UK devolution suggest that subsidiarity, while a potentially useful framework for assigning powers between national and supranational levels within a trans-national governance system, has little relevance when applied to the role of sub-national governance in trans-national systems.
Concordats have emerged as a device for coordinating UK governance in the wake of devolution to Scotland, Wales and Northern Ireland. They are agreements between UK Government and the devolved administrations which are intended to ensure the coherent governance of the UK notwithstanding the devolution of legislative powers to the Scottish Parliament and administrative autonomy to the National Assembly for Wales. Concordats stipulate the procedures and rules to be followed by the UK Government and devolved administrations for effecting co-operation and coordination in policy processes characterized by shared competence (i.e. concurrent powers), or with respect to policies where the actions of one administration will impact on the policy environment of the other administration. Why concordats are necessary is implicit in a comment made by Vernon Bogdanor;
"Devolution is the most radical constitutional reform this country has seen since in the Great Reform Act of 1832. This is because it seeks to reconcile two seemingly conflicting principles, the sovereignty or supremacy of Parliament and the grant of self Government in domestic affairs to Scotland and Wales."2
The role of concordats is to achieve precisely the reconciliation that Bogdanor identifies. It is in that context that we must appraise concordats, a context in which the political - and by implication the constitutional - significance of concordats is starkly revealed. Against this background, it is therefore unsurprising that the publication of concordats itself became a political event. That the concordats were presented as an already agreed series of documents was greeted with substantial protest from the nationalist lobby within the Scottish Parliament and, to a lesser extent, the Welsh Assembly.3 Leaving to one side for the moment the validity of the criticisms leveled against concordats, the debate itself was constitutive in defining the central political and constitutional significance that the concordats would have in the future governance of the UK.
In this article we review the concordats both from a procedural and an analytical perspective - what role they are intended to play, and how we might appraise the concordats in that context? We offer two perspectives on this question. First, we critique the concordats on the terms on which they are presented - namely as instruments of 'good governance' necessitated by the particularities of the devolution settlement. We find there is much persuasiveness in that argument although, as we demonstrate, establishing the administrative need for concordats cannot in itself validate or refute the criticisms that have been made against them. In the main, the focus of this paper is devolution under the Scottish model. Unlike the situation under the Government of Wales Act, devolution to Scotland transferred legislative authority to the Scottish Parliament with the result that the fault lines in the resultant UK governance system became very clear. As the role of the concordats is to stabilize these fault lines, it is in the Scottish model of devolution that a critique of concordats reveals the full extent of the underlying issues. Second, we consider the concordats as instruments of multi-level governance within the context of the European Union. To what extent is devolution within the UK consonant with the trend towards enhanced intra-EU 'regionalism', and does the analysis of concordats cast any light on how the EU governance system might be arranged to deal with an essentially similar set of problems - that is, the reconciliation between administrative efficiency on the one hand and political or constitutional legitimacy on the other? As we discuss, the debate within the UK with respect the 'domestic policy' content and context of European Union policies is one that is mirrored elsewhere in the EU. Moreover, it is a debate that is likely to become more intense as global 'management' of hitherto national (and sub-national) economic and social policies becomes more formalized and, as a result, more invasive.
The remainder of the article is arranged as follows. In section B we present a narrative which documents the history and the content of the concordats, and describes the function they perform in the organisation of UK governance in the aftermath of devolution to Scotland and Wales. In section C we offer a critique of the concordats as instruments of governance. We apply two criteria in this critique - legitimacy and accountability. In section D we extend our analysis of UK devolution to the European Union arena and review the lessons that devolution has for the evolution of intra-EU regionalism, or multi-level governance. We offer our conclusions in section E.