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 documents and
information must be made public and how.[8]
A comparative analysis of IGR in a variety of federations partly confirms a lose
dichotomy between federations in which IGR are largely understood as political in
nature, and those where interaction is more formally structured by law and controlled by
courts. With the USA as a partial exception,[9] the first group is largely composed of
federations that are grounded in the “common law” tradition, while the second is
comprised of those which arose in the context of the more “legicentrist” romano-
germanic (civilist) legal tradition.[10]
While broad generalisations ought to be used with caution, it would seem that the
common law tradition allows for more fluid norms, and the idea that courts
may not have the power to control (un)cooperative behaviour by federal partners
seems justified from a separation of powers perspective. By contrast (and again, with
caution), the civil law tradition is more “legicentrist” and actors trained in this tradition
tend to like “things written down”.[11] They appear more wary of non-legally binding
norms and tend to consider normal that judges – the formal arbitrators of the federal
compact – may, to a certain extent, oversee how partners behave and relate to each
other. Notably, in those regimes, the idea that a principle of “federal loyalty” – a form of
constitutionalised good faith – may bind federal partners, and be subject to some form
of judicial review, is more readily accepted.[12]
Similarly, students of federalism trained in the “civil law tradition” are more likely to
consider “intergovernmental agreements” as formal legal sources, often with a supra-
legislative status that precludes them being unilaterally repudiated by one of the parties.
In common law federations which have inherited the British constitutional tradition, the
principle of parliamentary sovereignty protects this autonomous and democratic
capacity of legislatures to “change their mind”, over and above their commitment to
keep to their word. This being said, this distinction should not be overstated either,
since, in most cases, agreements enjoy a very high degree of effectivity, regardless of
their formal status.
In short, the dominant common law or civil law legal culture seems to exert some
influence on the design and workings of federal systems, and notably on cooperative
mechanisms. This dichotomy must be nuanced however. A number of factors will also
influence the degree to which formal law permeates IGR. Hence, federations
established more recently are more likely to explicitly outline the “federal rules of
engagement” in their constitutional text or other organic laws. They benefit from a
number of examples of more explicit IGR mechanisms developed over time by older
federal polities. Similarly, federations which emerged through a process of
dissociation/disaggregation of a previous unitary state (by contrast to one of unification
of pre-existing entities) are also more likely to adopt a legal framework to structure
modes of interaction, given that it is often the lack of trust, or an experience of
marginalisation by certain groups that led to the dissociative federal process in the first
place. In that context, it might be feared that “spontaneous” cooperative relations are
less likely to emerge.
In other words, empirical comparative analysis suggests that “law” – both in terms of
norms and of judicial review – plays a greater role regarding IGR than is often thought
to be the case even in the more “pragmatic” common law federations. Conversely, even
in federations in which IGR largely ground in a legal framework, informal IGR (fora
organised in parallel to the formal ones, phone calls, emails, etc.) play an undeniably
important function in the daily life of federations. Put another way, the impact of legal
cultures may not be ignored, and the role of legal framework and rules should be
acknowledged and more systematically studied. But the distinction between federations
that consider IGR as part of public law, and those which relegate it to the world of
politics ought not to be reified. In both cases, law and politics inter-mingle.
The ‘Para-constitutional’ Functions played by IGR
The obvious purpose of IGR institutions and processes is to help components of a
federal state share information, articulate their respective actions in areas of exclusive
competences, and structure their respective actions in areas of concurrent or shared
competences. Through IGR they (should) develop more harmonious policies, set-up
processes and bodies for sharing information, consultation, joint-decision making etc.
IGR are used to negotiate or impose financial redistribution and to manage natural
resources and inter-regional bodies of water, bridges, or student mobility. Again, the
objectives and the panoply of means for realizing them are endless, with some parallels
between federations, as well as rather unique arrangements.
This said, IGR also play less visible, less explicit functions. IGR may be very effective
(and sometimes rather opaque) tools of constitutional (re)engineering. For instance,
through delegations or agreements, federal partners may circumvent the formal
distribution of competences. Formal and informal IGR mechanisms may, depending on
context or periods, reinforce officially hierarchical or centralising arrangements or serve
to counter those tendencies on the margins of the official institutional design of a
specific federal regime. IGR may be used to create – or recreate – regional groupings,
in a way that may officiously circumvent the formal territorial divisions (as is the case in
Nigeria, for example).
IGR may, as we saw, incorporate non-governmental actors in public management and
decision-making. They can serve to give a voice or provide services to minorities who
do not enjoy the official “tools of state” that a territorial unit offers.[13] IGR can also
reinforce the multinational character of a federation, notably through the incorporation of
asymmetrical arrangements that reflect power relations and/or concerns for the specific
situation of minority groups or nations within the federation, for instance. In other words,
beyond their “institutional planning function”, IGR can consolidate the multinational
character of a federation.
In addition, IGR have been rather effective in officiously – implicitly – transforming
officially dualist federations into partially “integrated ones”. This is done, for instance,
when, through inter-delegation and/or agreements, one order of government which
officially should be implementing its own laws and programmes (in the “dualist” mode),
transfers this administrative function to another, in the name of rationalising policy-
delivering. This may indeed lessen duplication and lead to more effective and
streamlined services. However, over time, the trend can surreptitiously transform the
“dualist” paradigm (Canada, Australia) into more “integrated ones” (Swiss, German), but
without the internal safeguards that integrated federal systems have to ensure a strong
voice in federal law-making. Both archetypes have their own internal and institutional
logic. Shifts from one dominant conception to another may thus have an impact on the
overall coherence and balance of the system, and may – gradually and implicitly –
transform a federation’s official architecture.[14]
Finally, IGR may serve to complement formal constitutional reforms (federal partners
will sort out “details” once major principles have been enshrined). In other cases, IGR
will be used as “alternatives” to constitutional reforms, particularly when constitutions
are rigid and formal amendments seem impossible to attain. Of course, this may create
a vicious/virtuous circle – having “non-constitutional” means of modifying the way a
federal system actually functions may obviate the need to officially restructure it.
Conclusion
Regardless of the initial and official structure of a federal system, interdependence and
interaction between orders of government is inevitable. Through intergovernmental
relations, federal actors share information, pool and redistribute resources, negotiate
and implement cooperative arrangements that determine who does – or should – do
what. This interaction takes place through a wide range of institutions and processes.
Oddly, when contrasted with international relations, IGR are largely under-studied.
This is particularly true of the most informal dimensions of collaboration, communication
and negotiations between federal partners, with or without third parties. The results are
essential networks which are often remarkably opaque. Deciphering IGR in any
particular federal system thus amounts to lifting a veil on federalism “as it is lived”,
concretely.
There is a wide range of IGR institutions and processes, most of which are extra-
constitutional. Most belong to the executive branch of government.
The legislature
Almost all federations have bicameral parliaments, and most have some form of regionally-
influenced representation in their second chamber or upper house. However, the only chamber
that can really be depicted as an IGR institution is the German Bundesrat whose members
directly represent the Länder governments – who therefore have a direct say in federal
government policy and law making (Watts 2008: 154). Although they provide equal
representation for each state regardless of population in recognition of the federal principle,
upper houses such as the US and Australian Senates have directly elected members who
primarily represent party rather than state interests.
Countries use a range of legislative techniques to facilitate IGR coordination or give effect to
national laws. In Australia, the constitution allows for states to refer powers to the
Commonwealth, although this has been done only sparingly (Phillimore 2010: 13). More
common has been the use of mirror or template legislation, which enables model laws, agreed by
all governments, to be replicated by others to ensure uniformity or consistency across the nation.
Such legislation often arises from intergovernmental agreements (see below). Parliaments
occasionally play a formal role in monitoring the executive in particular areas of IGR, such as
foreign treaties which place obligations on the sub-national governments. But generally the
legislature is a junior player compared to the executive.
The executive
In parliamentary systems in particular, ‘executive federalism’ dominates, with most IGR taking
place between the executives of the respective governments, including both political office
bearers and public servants. Interaction generally involves a range of standing and ad hoc
councils and committees, as well as ongoing discussions between officials. These executive
mechanisms vary in their level of formality, openness and effectiveness, and indeed have been
the subject of criticism for allegedly undermining public accountability and democratic control
of government (Poirier and Saunders 2010: 8).
Many countries have a peak intergovernmental body at which heads of government meet
regularly to discuss common issues and propose joint actions. In Australia, for example, the peak
IGR body is the Council of Australian Governments (COAG), comprising all first ministers (the
prime minister, premiers of all six states, the chief ministers of the two territories) and the head
of the national association of local governments. Yet COAG has no formal status in the
constitution, in legislation or even in a formal intergovernmental agreement. It is in fundamental
respects a meeting of government leaders, serviced by a Commonwealth secretariat
(Phillimore 2010: 13–14). Reflecting the Commonwealth's financial dominance, the prime
minister calls the meetings, sets the agenda and prioritises policy issues.
Often connected to the peak IGR body are meetings of ministers responsible for particular policy
areas, which are usually supported by officials’ meetings. In Australia, for example, ministerial
councils, which long pre-date COAG's establishment, now often deal with matters delegated
from COAG as well as with issues generated by their own ministers, upon which action may be
taken or endorsement from COAG sought. However, these bodies have been subject to criticism
as they generally work on consensus principles, and therefore it is quite possible for one or more
governments to ‘hold out’ and exercise effective veto powers. This can lead to inertia or lowest
common denominator solutions (Painter 2001: 140).
In some countries, horizontal IGR bodies have been established to enable constituent units to
work with each other without the participation of the federal government. In Canada, the
provincial premiers formed the Council of the Federation in 2003 and Australia followed suit
with the Council for the Australian Federation in 2007. The efficacy of these bodies as either
lobbying or governing bodies is unclear, however (Tiernan 2008).
Intergovernmental agreements (IGA)
An important method of coordinating IGR in all countries occurs through formal agreements
between governments. In some countries these are legislated, but in most they are concluded
through executive agreement alone – although they may form the basis subsequently for
legislation and the establishment of funding programs or new agencies. Australia currently has
well over 100 existing agreements, and although most are concluded between the
Commonwealth and the states and territories, some are ‘horizontal’ agreements between states.
Major national agreements are normally multilateral but some include bilateral agreements so the
Commonwealth and individual state governments can sort out details or deal with issues relating
to a particular jurisdiction.
Agreements typically assign roles and responsibilities to the signatory governments; detail any
financial provisions; and establish reporting requirements. Many arise from the distribution of
Commonwealth funds to the states to deliver services. Such agreements can be more or less
detailed in terms of the obligations they place on the signatories. Their legal status varies, and
dispute resolution mechanisms are usually not detailed to any great extent.
Independent and joint agencies
A common IGR mechanism is to establish a joint or independent agency to deal with a specific
public policy issue (Poirier and Saunders 2010: 6). These often arise from an IGA and may be
further supported by legislation. In Australia, such IGR bodies are sometimes established and
funded solely by the Commonwealth, but with the states having a role in appointing or approving
their members. Australia has numerous such bodies (see Phillimore 2010: 14) dealing with a
range of issues including fiscal federalism (Commonwealth Grants Commission), performance
evaluation (COAG Reform Council), policy advice (Food Standards Australia and New Zealand,
National Transport Commission), and regulation (Office of the Gene Technology Regulator,
Australian Competition and Consumer Commission, Australian Energy Regulator). A common
effect of establishing these executive bodies is to depoliticise an issue after initial negotiations
and discussions have taken place and a resolution reached.
Public service
The public service is crucial to the conduct of IGR in all countries. It is the ‘engine room’ where
detailed work is done, both through formal meetings of officials as well as through personal
relations and informal interactions. Often, and in keeping with the diplomacy analogy concerning
IGR, it is the job of the public service to maintain relations and dialogue with other governments
even during times of political tensions and stand offs (Poirier and Saunders 2010: 6).
However, it cannot be assumed that the public service of each jurisdiction is necessarily unified.
For many years in Australia, for example, ‘line agencies’ (responsible for most of the spending
and service delivery functions and often reliant to an important degree on funds from the
Commonwealth government) differed markedly from central agencies (premiers and treasury
departments) in how they approached IGR (Painter 2001: 140; Harwood and Phillimore 2012).
Line agencies traditionally had a more pragmatic and cooperative relationship with their
Commonwealth government counterparts, who were a key source of funds. At the same time, the
pace of change and reform in policy and administration was often quite slow. Over the past 25
years, however, central agencies have taken a more active role in IGR and asserted political and
policy control over line agencies to ensure that government priorities are adhered to, including in
IGR. This is often accompanied by an increase in resources, including dedicated IGR units or
sections co-located with their cabinet or policy unit.
Nor should it be assumed that all governments are equally capable or interested in IGR. While
national governments normally have access to more financial and human resources, even they
can find it difficult to cover the wide array of skills and competences involved in IGR properly
(Menzies 2011; Harwood and Phillimore 2012: 48–50). This is even more the case for
constituent units, for whom IGR can often be seen as a nuisance or intrusion into their regular
activities and a burden on their administrative resources.
Occasionally, particular jurisdictions take the lead on certain IGR issues. Victoria, for example,
was the principal driver behind Australia's National Reform Agenda in the mid-late 2000s. Less
populous and financially weaker governments often have to prioritise by focusing their limited
human resources on the IGR issues and institutions of most importance to them while keeping a
watching brief or relying on other constituent units to look after their interests on other issues
(Harwood and Phillimore 2012: 66–73).
Political parties
Political parties can have a large influence on IGR. If parties are very centralised and hold power
at both national and sub-national level, then national leaders may overwhelm and dominate
regional or state governments despite what the formal division of powers may say (Watts 2008:
119–20). This characterises the situation in South Africa and Malaysia, for example, and is likely
to be the case in the transition economies of Asia.
In Australia, the major parties are structured federally and state branches and governments retain
substantial importance and independence, although ‘federal intervention’ by the national party
organisation into dysfunctional state branches does occur from time to time. Collectively agreed
federalism reform and policy initiatives have occurred more readily on the relatively rare
occasions when one party holds power at the federal level and in most jurisdictions – as it did in
Australia in the early 1990s and most recently in 2008–09 (Fenna and Anderson 2012).
However, there are also numerous examples of conflict between Commonwealth and state
governments having political leaders from the same party.
Interest groups
Interest groups can both reflect and influence the form of IGR in a country. In Australia, for
example, business groups and trade unions used to be state-based but have steadily become more
national in organisation, focus and policy prescriptions, as the federal government has taken on
more responsibility for economic, competition, regulation and industry policy. Key professional
bodies (lawyers, doctors, other health professions) were traditionally subject to state legislation,
and have been slower to agree to national regulation, with smaller jurisdictions (supported by
their state governments) often holding out against moves to ‘go national’.
