28 July 2010

JMC dispute over AV poll & Holyrood 2011 clash?

Like me, I assume that most of you aren't steeped in the sections and procedures that were agreed in the Memorandum of Understanding, transacted between the UK Government, Scottish and Welsh Ministers and the Northern Irish Executive Committee in March 2010. Many of you, I suspect, might be aware that the Memorandum provides the broad terms of reference for the Joint Ministerial Committee (JMC). The fourth article of the JMC's terms of reference is to "consider disputes between the administrations". Today's Herald contains an article, suggesting that the Scottish Government is considering using this very dispute resolution mechanism to try to prevent the coupling of the 2011 Holyrood election and the UK referendum on AV, presently being insisted upon by Nick Clegg and the Coalition Government, despite strenuous objections from various quarters.

The Herald airily refers to "Westminster sources" for its explanation of what precisely the maybe-invoked JMC procedure actually entails. This is pretty sloppy sourcing, since the relevant section can clearly be consulted in the aforementioned Memorandum of Understanding. A look through this document strongly suggests that the Herald's reporting of this isn't just sloppy - but is inaccurate in several particulars. In the interests of clarity and your best information, its worth quoting the relevant section of the document (Annexe 3) in full. Look for yourselves. Sections A 3.6 - 3.8 concern resolving disputes "at working level", "informally". What the Scottish Government is considering is formalising the disagreement. Sections A 3.9 - 3.11 concern "References to the JMC Secretariat", mentioned in the Herald article. Here is what they say:

A3.9 Where the preceding steps have not resolved a difference, any of the parties may formally refer it to the JMC secretariat, so that steps can be taken to resolve it through the JMC process. A difference so referred is known as a disagreement.

A3.10 When it is notified of a disagreement, the Secretariat will normally convene a meeting of officials from the administrations involved (including representatives of the relevant territorial Secretaries of State). Through this process, the Secretariat will seek agreement on the facts, provide an opportunity for the parties to set out their positions and facilitate discussion of shared interests, options for resolving the disagreement and criteria for an agreed outcome. It will also inform the other administrations. This will be done within one month of the referral being received, or another period by agreement. Where a meeting of JMC (Official) is due to take place it may also consider the issue and involve officials from the policy area concerned.

A3.11 The outcome of this meeting will be one of: a proposal put to the relevant Ministers for their agreement; a report to the relevant Ministers seeking their agreement for a further round of the process at official level; or, exceptionally, a referral to the JMC. A disagreement so referred is known as a dispute.

A3.12 Where a dispute has been referred to JMC, the Secretariat will schedule a meeting in accordance with paragraph A1.5 of the Agreement on the JMC to consider the dispute. This will be done within one month of the referral being received, or another period by agreement. Attendance would include ministers from the UK departments and the devolved administrations involved in the dispute, along with the relevant territorial Secretaries of State or their representatives. The senior UK Minister chairing will as far as possible be someone without a direct departmental interest in the issue in dispute. The meeting might take place on the same date as a regular JMC meeting but would be separate from that meeting.

A3.13 With the support of the Secretariat, the Minister chairing will provide a further opportunity for the parties to set out their positions and will facilitate discussion of shared interests, options for resolving the dispute and criteria for an agreed outcome. The Minister chairing may in advance of the meeting wish to make informal efforts to resolve matters.

A3.14 The outcome of this meeting will be one of: an agreement resolving the dispute; agreement to a further round of the process at Ministerial level; or, exceptionally, agreement to notify JMC Plenary that the dispute remains unresolved.

The urgency attending all of this, as I understand it, is the principle time's a wasting.  In particular, Michael Settle and Kate Devlin's article in the Herald makes a confusing reference to "...registration officers needing a statutory six months to organise the referendum, the deadline to resolve any dispute moves to December." Although my understanding of election law is sketchy at best, I can't help but wonder if this is a misreading and a misunderstanding of section 102(4) of the Political Parties, Elections and Referendums Act 2000 on the "referendum period". Here is a parliamentary research document, setting out the provisions in a little more detail and with rather more understanding than I could hope to muster. Alternatively, they may be referring to some other section, beyond my ken. Other apparent errors creep into the piece too. Settle and Devlin describe the process thus:

"... if the JMC Secretariat cannot resolve the dispute, then it is handed over to the JMC plenary, involving the Prime Minister and First Ministers, which is not due to take place until next summer."

The next meeting of the JMC is reportedly in October. If the Scottish Government referred the matter to the Secretariat for further discussion, A.3.10 indicates a further meeting of officials would be held within one month of the notice of disagreement. An earlier meeting is perfectly possible. Assuming convening such a meeting did take a month, that would hold up matters till November. Here is where Settle seems to get it wrong. Read A.3.12 again. What the section describes isn't the JMC Plenary attended by First Ministers and Prime Ministers, but merely fellow ministers designated by the relevant parties to the disagreement. A3.12 also suggests that this meeting would be held within one month on the referral or at any other time agreed. Thus, we reach December. At least, I assume this is what the Herald piece is referring to in its cryptic and bald reference to the December deadline for resolving disputes. And as I understand the Memorandum, the Plenary session won't be "handed" the complaint at all, but is merely notified that is has been resolved, stalled or hangs around, odorously. 

The quality press eh? Ye cannae beat it.


  1. Can I draw to your attention the following website? - www.newsnetscotland.com/
    You may also be interested in the Scottish Parliament’s e-petitions relating to “The Saltire flag above Edinburgh Castle” and “The Wallace letter of safe conduct” - www.epetitions.scottish.parliament.uk
    Can I also ask that individuals with an interest in Scottish democracy:
    1. Visit Newsnet Scotland and join in the debate
    2. Sign the e-petitions on the Scottish Parliament’s website
    3. Pass on this communication to 5 others AND ask them to pass on to 5 others

  2. Anonymous,

    Generally speaking, I'm perfectly happy for visitors to plug other sites and whatnot which might interest me and others in the comments.

    If you take a wee peek in my sidebar, you'll notice that I already carry a feeding link to Newsnet Scotland.

    I'm sure interested folk will also look into the e-petitions you mention. Better to facilitate that, the link you cite is just a little wrong and won't directly connect to the site. However, the petitions Anonymous mentions can be directly consulted here.