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In this paper we have reviewed the role of the concordats in the new, post-devolution governance of the UK. The object of the paper has been to demonstrate the procedural centrality and constitutional significance of the concordats to the revised governance system, despite the fact that concordats have no constitutional status. Nonetheless much will depend on the practical inter-administration policy making arrangements and dispute resolution provisions that are set out in the concordats. It is these arrangements that have to manage the transition from a singular to a pluralist governance system for the UK, and make a success of the latter. To the extent that devolution was a response to the crisis of legitimacy of UK government, we suggest that the failure to have these documents fully debated and subject to ratification by the new territorial assemblies was ill-judged. Because the concordats were adopted by the administrations without first referring these to public scrutiny and debate, it is plausible to claim not only that they have not been properly legitimized but that policy measures flowing from these arrangements - in devolved or reserved matters - also are lacking in legitimacy. Were such claims to be made, such is the centrality of the concordats to UK governance that a similar accusation could be leveled against the entire model of devolution.
We have also considered the concordats against the background of EU governance, and in particular calls that a greater measure of subsidiarity should be observed within those arrangements. From this study, it is difficult to contend that devolution represents a move to greater subsidiarity within either UK or EU governance, regardless of the temptation to describe devolution in the language of subsidiarity and multi-level governance systems. Instead, devolution demonstrates the fundamental weakness inherent to an application of subsidiarity as a general rule of policy assignment. We argue instead that subsidiarity, as commonly understood, cannot be used as a device to assign competencies between the different levels in a multi-level governance system which transcends the nation state unless each of the levels have an accepted claim to international legal sovereignty. This condition applies to none of the sub-national authorities within any of the EU member states.
None of this changes the nature of the legitimacy crisis affecting either the UK or EU systems of governance. In the UK system, we have suggested reasons why devolution may not rescue governance from "...something approaching a national crisis of confidence in the political system". The danger is that the lack of transparency and accountability that characterized the entire concordat process may undermine those who would wish to present concordats as necessary and legitimate arrangements for maintaining the coherence of governance in the post-devolution UK. It is tempting to regard this as an issue of purely historic interest. As the concordats were debated in, and effectively endorsed by, both the Scottish Parliament and the National Assembly for Wales, our concerns may be deemed to a historical curiosity. However, under the terms of the concordats it is open to any signatory to request a review of their provisions. This may or may not occur, and much is likely to depend on future political developments in Scotland and Wales. As we have seen the concordats play a pivotal role in the new constitutional arrangements of the UK. And because of this, any move to re-open the debate over their content could readily evolve into a more fundamental constitutional debate the outcome of which is far from certain.