Intergovernmental Relations in Federal Systems: Ubiquitous, Idiosyncratic, Opaque and Essential

Johanne Poirier

johanne.poirier3@mcgill.ca
Johanne

Prof. Johanne Poirier teaches at McGill’s Faculty of Law in Montreal, where she holds the Peter MacKell Chair in Federalism. Her work revolves around various aspects of federalism, including intergovernmental relations and minority protection.

Abstract

Regardless of institutional design, all federal systems imply substantial degrees of interaction between federal partners. “Intergovernmental relations” (IGR) refer to the many modalities through which this interaction takes place. IGR take many shapes and forms. They fluctuate with time and according to policy areas. In this sense, they are idiosyncratic. They are, however, the essential “oil in the machinery” of every federal system, and as such may be rather ubiquitous. Following a short incursion in the terminological challenges relating to intergovernmental relations (and its companion: “comparative federalism”), this article explores the actors in the IGR game as well as the rich catalogue of legislative – and mostly executive-techniques on which these actors rely to structure their relations. IGR waltz between institutionalization and informality, often in an opaque fashion which tends to reinforce the executive branch of each federal partner.
This brief overview of IGR from a comparative perspective suggests that federations grounded in the “continental civil law tradition” are more likely to structure IGR through legal mechanisms and norms than their more pragmatic “common law” counterparts. Though this is a significant simplification, the latter tend to consider IGR primarily (if not exclusively) through a political lens. Yet – somewhat paradoxically – regardless of informality and legal status, IGR play similar functions in various federal systems. Coordination functions, of course. But also para-constitutional engineering ones, through which federal actors (generally the various executives) implicitly alter the official federal architecture.

Introduction

Polities based on federal principles are complex systems, each with their own internal logic and means of translating into concrete forms the combination of self-rule and joint rule.  Regardless of how competences are actually divided in diverse federal arrangements, substantial interaction between federal partners is always – and probably increasingly – inescapable.  In many federations, any significant policy development often requires some form of collaboration – or generates some friction – between orders of government. “Intergovernmental relations” (IGR) are the various means and processes through which this interaction takes place. More prosaically, IGR are the “oil in the machinery” of federal systems. They are an inevitable component of every federal institutional architecture.

IGR are affected by a wide range of factors, including geography, history as well as political and legal culture. Hence, while they are found everywhere, they take a specific colour (or shade of grey!) in specific federal environments. Dominant federal design (such as the number of constitutive units, the distribution of legislative and administrative competences, redistributive mechanisms and so on) will influence how IGR are conceived and unfold. The form of government (presidential, parliamentary, council-type) also has an impact, as do party politics and electoral systems. Diversity (ethnic, religious, linguistic) impacts on relevant IGR actors and dynamics. As a result, the study of IGR must be highly contextualised. The generalisations offered in this contribution are thus rather perilous.[1]

The Challenge of Terminology

The very expression “intergovernmental relations” is, from a comparative perspective, problematic. In English-speaking political science literature, IGR traditionally refer to the wide variety of ways in which orders of government enter into relations with each other. By contrast, in European-type federations, the expression “cooperative federalism” has tended to dominate, notably among jurists. Unfortunately, neither expression is fully adequate. “Inter-governmental relations” suggests that relevant interaction is the purview of the executive branch of each order, thus marginalizing other institutional arrangements. As for “cooperative federalism”, it is clearly under-inclusive, since interaction between federal partners does not only include cooperative institutions and practices, it also involves conflict, competition and coercion.[2] “Cooperative federalism” thus paints a picture that is far more harmonious than is often the case in the daily life of federal systems.

To complicate things further, the term “intergovernmental” is even more problematic in the context of the EU (examined through a “federalist” lens). In EU jargon, “intergovernmental” essentially refers to the “international relations” the member states maintain between themselves as sovereign states rather than as members of a (quasi)federal polity. In other words, the expression “intergovernmental relations” could be interpreted as antithetical to the federal dimension of the EU.[3] Clearly, this may generate a certain degree of confusion. This said, in what follows, I will use the generic “IGR” to refer to modalities, institutions and processes that structure relations between orders of government (and some third parties) in a federal-type arrangement.

Who’s who in IGR?

As the term suggests, intergovernmental relations take place between formal state actors: the official components of a federal regime. IGR can be vertical (between “central authorities” and constitutive units), horizontal[4]  (between the latter), bilateral or multilateral.

Increasingly, however, IGR involve third parties which are not “official” actors in a federation: municipalities (when these are not formally incorporated as a third order of government), indigenous peoples, private interests, minority groups and civil society. The emergence of new players adds further layers of complexities to IGR. Yet, taking third parties into account offers a more complete portrait of how power is actually exercised, negotiated and shared in federal systems. When central authorities deal more “directly” with these new actors, the impact may be of marginalising the “official” components of a federation, thus creating what has been termed “hour-glass federalism” in which the state/province level is largely being by-passed.[5] But this is not always the case, as constituent units may also have closer links with some local “non-governmental” actors, which are included in the IGR game. For our purposes, what matters is that IGR are not (or no longer) conducted solely with constitutionally recognised holders of state power This creates more complex decision-making and implementation networks, and also challenges the very conception that state authorities have a monopoly on the exercise of power.

A Rich Catalogue of IGR Institutions and Mechanisms

Intergovernmental interaction takes place through a wide range of institutional arrangements. Some involve legislative institutions and techniques. These include, of course, bicameralism, in which (federal) chambers are meant to give a voice in federal law-making to constituent units. But IGR may also take the route of parliamentary committees, and in some cases of direct cooperation between parliaments and elected officials of various orders of government. Legislative harmonisation, coordination and delegation are also used to limit dissonance between orders of government without resorting to the centralisation or uniformity that would often contradict the very purpose of the federal regime.

However, by far the most frequent modalities of IGR involve the executive branch. Executive-type IGR include the integration of members of constituent units in the composition of the federal cabinet, high profile fora or meetings of the top executives of various orders of government (Presidents and governors, Prime ministers and premiers, for instance) and innumerable meetings between policy specialists from all (or a number of orders) of government. They may also involve specialised agencies to which administrative functions are delegated by orders of government.[6]

Another method for promoting coordination is through a partially integrated civil service, or at least one that values and enjoys mobility and interaction and/or common training. A “professional” civil service (one that is immune from partisan influence) is more likely to facilitate effective IGR in the context where there is no party congruence between various orders of government, or in cases of changes in dominant parties with differing political agendas. In other words, a professional public service can offer stability in the face of political change.

By far one of the most common instruments of structuring IGR is through intergovernmental agreements, which go under a variety of names, including “concordats”, “compacts”, “cooperation agreements”, “administrative agreements”, “accords”, “memorandums of understanding”, etc. Governments literally conclude dozens (and in some cases hundreds or even thousands) such agreements any given year. As will be noted below, some federations consider such agreements to be formal legal sources (generally with supra-legislative normative force), while others consider them to be political “until proven otherwise”.[7]

Managing the plethora of collaborative institutions, techniques, and processes requires a complex logistic. In many cases, a specialised body or secretariat is mandated with tracking down and facilitating interaction, somewhat alike to a Department of Foreign Affairs. It can plan and oversee “high level” meetings, promote the conclusion of agreements, in some cases serve as a repository of those “inter-federal treaties”. In some instances, a specialised Department within orders of government centralises all actions to “inter-federal” relations, with a Minister specifically dedicated to maintaining those relations, again, in parallel with Ministers of foreign affairs. In other cases, this “umbrella management” lies with the office of the Head of government (federal prime minister or heads of the executive branch of the various constitutive units). Some inter-ministerial bodies have complex voting formula to adopt binding decisions. In other cases, such high level meetings function by consensus, which may lead to “lowest common denominator” agreements. Given an increasing trend in “horizontal” cooperation, secretariats that bring together all (or some) constituent units are also emerging.

When IGR are dominated by central authorities (when a federal minister always presides over inter-ministerial meetings for instance), the impact may, of course, be strongly centralising. This said, some federations do entirely without such bodies. The coordination work takes other routes, often using political party’ channels. This, of course, renders cooperation between federal partners led by different political parties more challenging, and often more difficult to track.

From Constitutionalised to Informal IGR…and Back.

Assessing the “formality” and “informality” of IGR partly depends on disciplinary and cultural lenses. Hence, it appears that jurists – particularly those trained in legal regimes that have been influenced by the romano-germanic tradition – tend to conceive as “informal” any mechanism that is not grounded in written and preferably legally-binding texts. By contrast, political scientists – and other analysts trained in a more pragmatic common law context – are more likely to focus on the predictability of the process, on its decorum, on the fact that relevant actors generally respect commitments regardless of legal status. In short, the boundary between “formal” and “informal” can differ depending on context, discipline and political/legal culture. The terms must thus be used with caution.

In some federations, IGR are officially grounded in legal (or even constitutionalised) rules and procedures. This is, of course, always the case of second chambers. But laws and regulations may also structure meetings at the highest levels, outline voting procedures, set-out the binding legal status of agreements concluded between federal partners. A recent Spanish law even sets out which intergovernmental