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Although presented by the Scottish Executive as administrative documents, the concordats became the subject of a heated political debate as soon as they were published. Critics, principally from within the SNP, raised two issues. First, that the provisions of the concordats effectively curtailed the sovereignty of the devolved administration and its legislature. Second, that the terms of concordats should have been subject to a debate within, and - crucially - ratification by, the Scottish Parliament before being adopted.39 Both criticisms were rebutted vigorously by the Executive. The first criticism was dismissed, properly, as incorrect. As we noted earlier, the devolution legislation did nothing to weaken the sovereignty of the UK Parliament. Instead, it delegated to the Scottish Parliament the authority to legislate in devolved matters.40 Consequently, as the First Minister pointed out, the provisions of the concordats did not - nor could they - affect the constitutional situation. The second criticism was dismissed on the basis that the concordats were agreements between the UK and the devolved administrations over procedures for policy co-operation and coordination. As the Parliament was neither a signatory to the concordats, nor was its constitutional position affected by the terms of the concordats, there was no reason for these documents to be subject to Parliamentary ratification. On the face of it, both answers are persuasive. However, neither has proven to be entirely convincing.41 We suggest that the critics have raised important questions which have not, to date, been given adequate consideration - questions about how concordats should be conceptualized within the broader constitutional architecture of reformed British governance; the criteria by which certain provisions of the concordats should be evaluated; and the role of Parliament with respect to these tasks.42 Nothing in our critique is intended to imply either that the concordats are unnecessary or undesirable. Quite the opposite is the case: given the nature of devolution, the type of arrangements provided for in the concordats are - as we have suggested - both necessary and desirable. Instead, we will argue that the essentially positivist interpretation of concordats offered by the Scottish Executive - and which is justified by reference to the formal constitutional position - ignores the practical significance that the concordats will assume in the new arrangements of British governance. That concordats have no base in constitutional law does not mean they are without constitutional significance.43 Indeed, we conclude that the terms and operation of the concordats will be a crucial influence over the stability of the reformed system of British governance. There are two aspects to our critique. The first critique takes its cue from considerations of legitimacy, the second from issues of accountability.
A standard reading of the British constitution identifies it as a fluid set of procedures and arrangements which reflect a combination of law and convention, institutional codes and norms, principles and expediency and which, collectively, define the prevailing system of governance.44 In that literature, the constitutional significance of the civil service is a prominent theme.45 The civil service is fundamental to British governance. It is civil servants who transform political manifestos into effective Government policies, and who ensure continuity of governance at times of discontinuity in Government. They are impartial policy advisors to Government, and are required to broker agreement between the Departments of government where disagreements over policy matters arise.46 The civil service acts as the collective memory of the state, and it is civil servants who are responsible for providing the context for a new government as it confronts the range of policy portfolios for which it has assumed responsibility. Civil servants discharge these various functions via a panoply of internal rules, codes, conventions and norms that are designed to facilitate the administration of governance as stipulated by the Government of the day, within constitutional constraints and with minimal interference from extraneous sources. To borrow a metaphor, the civil service can be characterised as the 'software' of the 'operating system' that is British governance, without which the operating system will not function.47 We can usefully extend this metaphor to capture the significance of the administrative arrangements which have been introduced to facilitate the transition to multi-level governance in the UK. Devolution has changed the internal configuration of the operating system of British governance; it has changed the structure of governance from singular to pluralist. Accordingly, the software that drives the operating system must be 'up-graded' to ensure that the re-configured system can execute efficiently the extended range of tasks now required of it, and be able to resolve unanticipated problems that may arise. The software up-grade must incorporate routines that disable any 'viruses' that may be spawned within the new environment, and which have the potential to immobilise the system. Indeed, astute software analysts will build-in an override facility within the new procedures to enable an operator to reboot the entire system under its original configuration should the new routines fail. The metaphor is obvious, as is its appeal. The reconfigured operating system of governance is defined by the devolution legislation. The concordats represent the software up-grade, and these incorporate various 'virus guards' protecting the system from attack by policy externalities. The override facility is provided by the ultimate sovereignty of the UK Parliament which can be applied in the event of a 'bug' in the software of the new operating system. The metaphor neatly explicates the argument that concordats are related to functions rather than to outcomes, and as such are an issue for functionaries and not politicians. At the same time, however, it captures graphically the significance of concordats as a new and crucial element in the internal administrative procedures of (reformed) British governance. The constitutional significance of concordats is laid bare - they are essential to the new governance arrangements; should they 'fail' a constitutional crisis is likely to follow.
That the concordats will play a key constitutional role is undeniable: indeed, this is precisely their function. The concordats define the mechanics of inter-administration policy arrangements, including dispute settlement, the sole purpose of which is to buttress the new system of UK governance. They do this in three respects: (a) by modulating the legislative autonomy of the Scottish Parliament, though not its legislative authority;48 (b) by defining the terms under which the devolved administrations will participate in the formulation and negotiation of UK policy with respect to specific reserved matters and; (c) by prescribing the arrangements for resolving disputes between UK Government and the devolved administrations on the above issues, including the openness of these arrangements to public scrutiny and Parliamentary accountability. Viewed in this context, it is clear that the concordats are more than simply procedural postscripts to the constitutional settlement. The concordats stipulate the conditions under which the conditional delegation of competencies to the devolved administrations and their assemblies will be exercised. However, that devolution is conditional in this sense is not the basis of the controversy.
That a parliament may find its effective (as opposed to constitutional) legislative autonomy being constrained by force of circumstances is neither uncommon nor necessarily controversial - this is precisely the consequence of many international treaties and accords.49 However, imposing limitations on the autonomy of parliament which have not been debated and endorsed by that parliament is a different matter entirely, and is almost certain to provoke controversy even where it was implicit that it would be necessary to impose such limitations. And understandably so, as these restrictions command neither constitutional authority (in which case would have been subject to debate and ratification) nor political legitimacy. Although scholars acknowledge that 'legitimacy' is a notoriously vague concept which does not readily lend itself to rigorous analysis, it appears that concerns precisely of this nature lie at the heart of the Labour Government's constitutional reform measures. For instance, Lord Irvine, the Lord Chancellor, has commented;
"The world's democracies face many challenges in common. Public disillusionment with politics is one of the most critical. From country to country, our circumstances may differ, but we share a common challenge - the perception by people that government serves the governors, not the people. It is the duty of those in government to demonstrate that democratic politics are not just better than the alternatives - but that they merit respect in their own right."
He continued;
"The United Kingdom has suffered from a long drift towards ever greater centralisation of political power. This has caused many to feel that they have little or no opportunity to influence the important decisions that affect their daily lives. The accountability of government to the people has been damaged by a culture of secrecy....Our solutions are based on the incremental development of a mature democracy, where government is brought closer to the people."50
The relevant question is not whether devolution brings government closer to the people. As a constitutional event clearly it does. But it is straightforward to show that devolution is not coterminous with legitimacy. While a law enacted by the Scottish Parliament may be deemed 'more' legitimate by Scots than one enacted by the Westminster Parliament because it was enacted by a Scottish legislature, it might equally be deemed to be 'less' legitimate if it is believed to be the product of an inter-governmental cabal convening outside the parliamentary process.51 This argument can be clarified by considering the difference between the legal or formal validity of an action, on the one hand, and the social or informal validity of the same action on the other. As Weiler has argued, conceptions of legitimacy or validity extend beyond syllogism - that is, we do not judge the legitimacy of an action solely by reference to its consequences. It is equally valid to apply legitimacy-illegitimacy discourse to the rule according to which the decision to undertake the action was reached - that is, the legitimacy of an outcome (policy) can be assessed by reference to the legitimacy of decisional 'rule' which generated it, even where that rule is consistent with constitutional procedure. Decisional rules are thus being appraised by appeal to a deeper normative rule which, "...may pertain to some normative political theory which sets out conditions for 'legitimate' government...It may also pertain to ethics and morality as providing a deeper order of legitimacy against which even formally valid acts of governance may be checked."52 The upshot of this argument is that not all outcomes necessarily command legitimacy in the broad sense even though they may be produced by constitutionally valid rules if these rules themselves are deemed to be illegitimate by reference to some commonly held notion of justice or fairness or appropriateness. Lord Irvine's comments can be interpreted in precisely this manner.53 We may apply justifiably this form of legitimacy test to concordats as joint policy-making procedures and arrangements which deliver tangible outcomes. If the outcomes are to be accepted as valid, then these procedures and arrangements have to command legitimacy. Do the rules set out in concordats command legitimacy in this broad sense? In the light of the marginal role played by either the Scottish Parliament or the Welsh Assembly in shaping or endorsing the concordats, it is difficult to argue that they have been subjected to a legitimacy test.54 Given the key role that the concordats are set to play in stabilizing the reformed system of UK governance, this may have been an important opportunity missed.55
Our second critique invokes considerations of accountability. Here we focus specifically on the arrangements agreed between the devolved administrations and UK Government for mediating policy-related disagreements - i.e. the procedures of the Joint Ministerial Committee (JMC). Arguably, the actions of the JMC will have the greatest constitutional impact over time - both in terms of its specific recommendations, and with respect to the manner in which it functions. As indicated earlier, the principal role of the JMC is to broker an inter-administration consensus with respect to policies of joint interest to the devolved and UK governments where other channels - including the offices of the territorial Secretaries of State - have failed.56 The JMC will be "...one of the principal mechanisms for consultation on UK positions on EU issues...".57 While the JMC is a consultative body, "...the expectation is that participating administrations will support positions that the JMC has agreed."58 Therefore, although the JMC occupies no constitutional standing its deliberations are likely to assume considerable political significance. It is already clear that interest does not focus solely on what the consensus position that the JMC might reach, but extends to the arguments which the participants present as the deliberations proceed. However, the MoU stipulates that, "The proceedings of the JMC will be regarded as confidential by the participants, in order to permit free and candid discussion" although "...there may be occasions on which the Committee will wish to issue a public statement on the outcome of its discussions."59 This stipulation, agreed by both UK Government and the devolved administrations, raises fundamental questions of accountability.
The Oxford English Dictionary defines accountable as being "obliged to give a reckoning or explanation for one's actions: responsible". In orthodox approaches to government, accountability is regarded as one of three pillars of democratic government, the others being the authority to govern, which is contingent on the electoral process, and the responsiveness of government, which requires government to meet the needs of all sections of society and not just its own constituents. In turn, for a government to be accountable for its actions, it must articulate a statement of aims; its actions in meeting these aims must be transparent; and it must assume responsibility for outcomes. Should any one of these conditions be breached, then accountability can only be partial at best. Self-evidently the arrangements for the JMC breaches the 'transparency of actions' requirement, and leaves the other two largely at the discretion of the administrations. While the MoU states that a public statement may be issued following a JMC, the implication is that this will report the consensus reached rather than the deliberations involved. In effect, therefore, the JMC procedures agreed upon will not render the devolved Executive accountable to the devolved Parliament, or the public at large, for the actions it takes - actions that may impact directly on the scope for the Parliament to exercise its legislative authority. The reasons given for the confidential nature of JMC deliberations are convincing to a point. Clearly where the JMC convenes to agree a matter such as the UK negotiating position to be represented in prospective EU policy deliberations it would make no sense to publicise the outcome ahead of the negotiations. Similarly, certain policy discussions may involve questions appertaining to national defence and security which, by their nature, must remain confidential. However, obvious exceptions apart, the case for confidentiality - especially after the relevant negotiations are concluded or policy agreements reached - is less convincing. Transparency need not require the publication of a verbatim transcript of the deliberations. Authoritative reports of the discussions, or agreed minutes of the meetings, would go far in facilitating the accountability of the Executive. However, shrouding the activities of this key committee in secrecy can do little to advance the legitimacy of the evolving governance arrangements.
In the critique offered here, we conclude there were valid grounds for arguing that the concordats should have been the subject of a comprehensive debate in the Scottish Parliament, and required the ratification of the Parliament before being adopted by the Scottish Executive. But is this an issue solely of historical interest? Or, alternately, are there reasons for expecting the matter of concordats to return to the political agenda? In the next section we consider why the controversy over the concordats may not yet be over.
39 There criticisms, and other more detailed points, were levelled by Alex Neil, MSP, on behalf of the SNP during the concordats debate.
40 The failure to distinguish between sovereignty and delegated authority is a cause of much confusion in the debate.
41 Concordats continue to be a subject of controversy, particularly in Scotland.
42 This latter question is crucial if, as provided for in the concordats, the arrangements are to be revised in the light of experience.
43 For a discussion regarding the role of conventions in constitutional theory, see C R Munro, Studies in Constitutional Law, 2nd edn (1999) at 55-87.
44 This conceptualisation of the British constitution begins with Bagehot's The English Constitution.
45 See, for example, P Hennessy, The Hidden Wiring; Unearthing the British Constitution (1995), at 119-138
46 For an excellent overview of the Civil Service, see Chapter 16 of P Hennessy's, Whitehall (1989)
47 Hennessy attributes this metaphor to Lord Bancroft, former Head of the Civil Service (The Hidden Wiring; Unearthing the British Constitution at 23). Later in the same volume Hennessy cites Lord Bancroft describing the role of the Civil Service as "to act as a permanent piece of ballast in the Constitution on the basis that you have what can be a very volatile legislature and an equally volatile ministerial executive. Sometimes, therefore, you need a degree of balance and permanence." (at 127)
48 If practiced for a period of time, constraints on autonomy could result in a loss of authority.
49 The Westphalian definition of sovereignty - i.e. the principle that external actors are excluded from exercising influence over domestic authority structures - is breached by numerous voluntary international agreements, the most sophisticated of which undoubtedly are the EU Treaties.
50 Speech delivered by Lord Irvine of Lairg, The Lord Chancellor, entitled "Britain's Programme Of Constitutional Change", University Of Leiden The Netherlands, 22nd October 1999.
51 Ultimately this will depend on whether the public dislikes unrepresentative government more or less than collaborative government.
52 J H H Weiler, 'Legitimacy and Democracy of Union Governance', in G Edwards and A Pijpers (Ed), The Politics of European Treaty Reform (1997) at 250 (emphasis added).
53 In a speech to the Constitution Unit in December, 1998, Lord Irvine described the situation confronting the incoming Labour Government as, "something approaching a national crisis of confidence in the political system", http://www.open.gov.uk/lcd/speeches/1998/1998fr.htm
54 Although the concordats were debated and endorsed in both devolved chambers, neither the Scottish Parliament or the Welsh Assembly had the authority to amend the terms of documents.
55 For an alternative, but consistent, treatment of legitimacy, see C Meyer, "Exploring the European Union's Communication Deficit", Journal of Common Market Studies, Vol. 37, No. 4. Meyer defines legitimacy as "...a property of governance consist[ing] of an empirical component (public trust and support) and a normative component (justifiableness according to norms, values, traditions)."
56 We confine our comments to the JMC in dispute settlement. Thus we are ignoring the 'ceremonial' meetings of the JMC, and meetings of the 'standing' Committees that have been established - i.e. on social exclusion and on the information society.
57 MoU, A1.9
58 ibid, A1.10
59 ibid, A1.11