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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.
2 V Bogdanor 'Constitutional Reform in the UK'. Paper presented at the Centre for Public Law, University of Cambridge, January, 1998.
3 For example the Liberal Democrat leader in the Welsh Assembly observed that; "...the tone of the document [concordat] could sometimes be seen as treating us as country cousins." Cited in J Osmond Devolution: 'A Dynamic, Settled Process' (1999) p30