The Functions of Intergovernmental Agreements: Post-Devolution Concordats in a Comparative Perspective
(Spring 2001) Public Law 134-157
29 Pages Posted: 9 Jul 2016 Last revised: 21 Aug 2016
Date Written: November 27, 2015
The present article examines the functions played by concordats and other intergovernmental agreements (IGAs) in the United Kingdom, in light of the experience of some multilayered states, notably Canada, Belgium, Australia, Switzerland, Germany, the United States and Spain. The author first explains the role of IGAs in multi-layered states, before addressing their similar function in the UK.
The legal status of IGAs varies greatly between federations, but agreements play at least five common functions. First, they are used for substantive policy coordination or harmonization between orders of government. Second, they govern intergovernmental process and procedure. Third, IGAs play a ‘para-constitutional’ function when they are used to circumvent the formal distribution of powers or to formalise a convention. Fourth, they are instruments of ‘regulation by contract’, using the guise of compromise and consensus as an alternative to a unilateral exercise of power. Fifth, IGAs are instruments of soft law, negotiated, drafted and implemented as if they were binding regardless of their legal status.
UK concordats are essentially designed to ensure efficient information-sharing, early-warning and rules of confidentiality between administrations. As such, their main function is that of ‘procedural cooperation’. However, a closer examination reveals that they also serve some policy-coordination functions. Furthermore, the ‘no surprise’ credo they embody is reminiscent of the principle of federal comity or federal loyalty and points to a para-constitutional function. There is also no doubt that concordats play a soft-law function in the conduct of devolution politics. Finally, time will tell whether in the UK, as in other multi-layered States, concordats will play ‘regulating by contract’ functions, dressing up directions from the centre in consensual terms.
Keywords: devolution, federalism, concordats, intergovernmental agreements, United Kingdom, Canada, Belgium, Australia, Switzerland, Germany, United States, Spain, comparative constitutional law
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