Devolution: A Decade On - Justice Committee Contents

Memorandum submitted by the Scottish Government


  1.  It is well established that sovereignty over the governance of Scotland lies with the people of Scotland.[45] As a sovereign people, it is for the Scottish people to decide how they are governed.

  2.  The Scottish Parliamentary election this year demonstrated that the people of Scotland want further progress in the constitutional arrangements under which they manage their affairs. The position of the Scottish Government is that independence offers the best future for Scotland. Others support increased devolution, greater responsibility for taxes and spending, or federalism. The common theme is that the constitutional position of Scotland must move forward. The Scottish Government has therefore launched a wide-ranging national conversation on the future of Scotland. The Scottish Government paper, Choosing Scotland's Future, provides the starting point for that conversation and is available at 2007/08/13103747/0.

  3.  These constitutional developments in Scotland are mirrored by major developments elsewhere in the United Kingdom. The devolution arrangements of both Wales and Northern Ireland have moved forward significantly this year, and elections have brought different political parties, or coalitions, to power. As a result, the administrations and parties now in office in the United Kingdom represent a broad range of opinion on the best constitutional relationship between the different constituent parts of these islands.

  4.  It is necessary for both the United Kingdom Government and United Kingdom Parliament to engage closely with this wide-ranging constitutional debate already taking place within the United Kingdom. That engagement will have to include an acknowledgement of the aims of democratically-elected national governments and parliamentary institutions, such as those in Scotland.

  5.  The Committee's inquiry into devolution is therefore a welcome and timely indication that the importance of these issues is being addressed by the United Kingdom Parliament. The Scottish Government is keen to contribute to the Committee's work.


  6.  The Scottish Government response to the specific questions forming the Committee's terms of reference is below.

Westminster: How does Parliament deal with devolution issues, eg legislating for Scotland and Wales

  7.  The Scottish Government believes the Sewel Convention—that Westminster does not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament—is essential to the current devolution settlement, given the United Kingdom Parliament's continuing claim to unlimited sovereignty to legislate for Scotland. The Convention makes it possible for a devolved Scottish Parliament to operate under this constitutional system, and reduces the potential for dispute and disagreement between the Parliaments, recognising the purpose of devolution in giving legislative responsibility to the Scottish Parliament.

  8.  In practice Legislative Consent Motions seeking the consent of the Scottish Parliament under the Convention have generally been used for minor provisions in Westminster Bills. Substantive legislation for Scotland in devolved areas has mainly been contained in Acts of the Scottish Parliament itself Legislative Consent Motions are subject to the express agreement of the whole Scottish Parliament, after detailed scrutiny by the relevant Parliamentary Committee. The process is analogous to the scrutiny by the Scottish Parliament of its own legislation, is regulated by the Scottish Parliament's own Standing Orders, and fully respects the Scottish Parliament's legislative competence in respect of devolved matters.

  9.  Use of the Convention does not (and cannot) transfer any part of the Scottish Parliament's legislative competence back to the United Kingdom Parliament. The Scottish Parliament retains the right to legislate on the same issue itself on another occasion if it wishes to do so, and to amend or repeal provisions on devolved matters which have been enacted by the United Kingdom Parliament.

  10.  The Scottish Government believes that the Sewel Convention will remain a key part of the current constitutional arrangements as long as the United Kingdom Parliament retains its claim to its current powers. Continuing respect for the fundamental principle of the Convention by the United Kingdom Government and United Kingdom Parliament is crucial to the proper working of these constitutional arrangements, as well as good relations between the respective Governments and Parliaments of Scotland and the United Kingdom.

What issues remain outstanding, eg "the English question"

  11.  The outstanding issue in Scotland remains further development of the constitutional settlement, whether to move to independence or further devolution to the Scottish Parliament. There are differing views within Parliament about the precise nature and extent, but it is evident that there is majority support in Scotland for greater devolved responsibilities.

  12.  Future arrangements for the government and constitution of England are self evidently for the people of England to determine for themselves. It is not for the Scottish Government to propose solutions to "the English question". However Scottish independence and, to some extent perhaps, full fiscal autonomy could, in practice, address many of the concerns that have been expressed.

  13.  There is a wider issue surrounding the failure of current constitutional arrangements for the United Kingdom to make distinctive provision for England. The current constitutional framework lacks overarching, co-ordinating structures linking central and devolved interests, and there are no clear modes of working for institutions which are simultaneously the Government and Parliament of England and of the United Kingdom.

  14.  Hence there is criticism that both the United Kingdom Government and the United Kingdom Parliament fail to reflect satisfactorily the distinction between United Kingdom matters and those which, in practice, represent distinctive interests and policies of England (a similar criticism is made of institutions such as the news media). A particular example of this is in relation to the development of a single United Kingdom line on EU matters (discussed further below). This distinction can be particularly important when there are different political parties in office in Scotland and in the United Kingdom and, effectively, England.

  15.  The absence of a proper constitutional structure to allow co-ordination of action in areas of joint interest and an effective means of dealing with the consequential effects of decisions taken in the respective jurisdictions is one of the major weaknesses of the current devolution arrangement. Whilst the Scottish Government is of the view that Scotland's affairs would be best managed in an independent Scotland, it also believes that the deficiencies of the current structure should be addressed while Scotland remains within the United Kingdom. For example, the Joint Ministerial Committee should be developed further (this is discussed further below). The importance of mechanisms of this kind, in coordinating common interests and supporting good relations between governments, was clearly recognised by all signatories of the Memorandum of Understanding.

  16.  The Scottish Government would encourage the Committee to look closely at the current and potential use of practical mechanisms, such as the Joint Ministerial Committee, for improving the functioning of existing devolution arrangements. In the view of the Scottish Government, it is regrettable that the United Kingdom paper on The Governance of Britain does not extend to examining these important issues.

Whitehall: What impact has devolution had on Whitehall? Has there been a change in culture? How have they responded to the divergence in policy making? How have the Concordats developed, and are they working?

  17.  The Memorandum of Understanding and its underpinning concordats have not been changed significantly since they were established at the start of devolution. The Scottish Government is prepared to work within the existing formal framework that the Memorandum of Understanding provides, but it believes that the time is right—with new governments now established in Scotland, Northern Ireland and Wales—to review the terms of this framework to ensure they provide a sound footing for formal engagement between the four governments in future. This is a role perhaps most appropriately undertaken under the auspices of the Joint Ministerial Committee.

  18.  There are also 26 bi-lateral concordats with Departments of the United Kingdom Government. The Scottish Government sees the value of these in supporting formal intergovernmental engagement and made a pre-election manifesto commitment to "strengthen the concordats to maximise the role and influence of Scottish government across the full range of reserved and devolved areas". It will be important to review each of these concordats in the coming months to ensure they fully reflect Scottish needs and aims.

  19.  The terms of the concordats—like those of the Memorandum of Understanding—are not enforceable under statute, and are binding only politically (or "in honour"). The Scottish Government sees significant weaknesses in this system, particularly during a period when different political parties are in office in Scotland and the United Kingdom. In particular, the agreements are of a consultative nature and there is no obligation on the United Kingdom Government to accept Scottish concerns, even when the United Kingdom Government is largely acting as, effectively, the Government of England.

  20.  The Scottish Government will continue to fulfill its obligations and engage constructively and positively with the United Kingdom Government. It expects the United Kingdom Government will do the same. However, it is desirable to have a forum to discuss occasions when an administration considers the obligations of the Memorandum or Concordats have been overlooked. The Joint Ministerial Committee, once reconvened, could, as one of its roles, monitor the implementation of the Memorandum of Understanding and Concordats.

Intergovernmental relations: How are bodies such as the British Irish Council working?

  21.  Scotland is a committed and active member of the British Irish Council. The Scottish Government welcomes the opportunities it provides to build effective working relationships with the Republic of Ireland and the other administrations of the islands of Great Britain across a range of policy areas. The British Irish Council currently brings together two sovereign states, three devolved nations and three crown dependencies within a forum which enables co-operation on issues of mutual concern. This could provide a model for future cooperation across Britain and Ireland following independence for Scotland, with the current Council evolving to encompass three sovereign states, including an independent Scotland and the remainder of the United Kingdom, the devolved nations and island territories. This would provide a formal mechanism for the Governments of Britain and Ireland to work together. That formal structure would complement other continuing relations across the islands in social and cultural fields, as well as a continuing Union of the Crowns between Scotland and the remainder of the United Kingdom.

  22.  Scotland participates in all of the work sectors of transport, environment, knowledge economy, e-health, tourism, misuse of drugs and minority and lesser used languages. In addition Scotland currently leads the work sector on demography and jointly leads on social inclusion with Wales. At the Belfast Summit in July 2007, the First Minister proposed that Scotland could lead on a new Energy work stream. The supporting Secretariat for the Council has been tasked to review and renew the work of the Council and it is hoped that Energy, led by Scotland, will be agreed as an appropriate new work stream by all member administrations, over the coming months.

  23.  At the Belfast 2007 Summit, the First Minister remarked on the diversity and variety of political governments represented at the table of the Summit meeting. He spoke specifically of his support of the important work of the Council's various sectors and looked forward to working closely with the member administrations in the future. The Scottish Government has publicly stated its commitment to working with all members to ensure that the British Irish Council is developed as a suitable forum for co-operation across the administrations of Britain and Ireland. Scotland looks forward to hosting a future Summit of the British Irish Council during 2008.

  24.  The other formal mechanism for inter-governmental relations is the Joint Ministerial Committee although it has not met in plenary format since 2002. As discussed above, the results of elections across the devolved administrations this year have highlighted the need for formal mechanisms for the governments of the United Kingdom to work together. The Joint Ministerial Committee and its range of sub committees provide a framework for Ministers of devolved administrations to discuss matters of mutual concern with United Kingdom Ministers and each other.

  25.  The Scottish Government believes there is a strong case to reconvene the Joint Ministerial Committee in 2007 not only to review how inter-governmental relations are conducted, but in the context of specific issues of mutual concern. The First Minister, speaking at Westminster on 25 July 2007 said: Those joint ministerial committees, certainly in plenary session, have not met since 2002. In terms of the sub-committees, which are part of that process, only one strand of four sub-committees has met over the past five years, and that is the sub-committee on Europe. An arrangement that was brought into being-presumably, because it envisaged a situation in which the same party would not be in government in Westminster as was in government in Scotland or Wales-has fallen into total disrepair. It is important that that instrument, or something like it, is brought back into being very quickly.

  26.  The First Minister has written to the Prime Minister to formally request the reconvening of the Joint Ministerial Committee, and in August has made the same proposal to the Secretary of State for Scotland. There has not yet been any clear indication of the United Kingdom Government's intentions in this respect.

  27.  The Scottish Government believes that in future the Joint Ministerial Committee could provide a vehicle for the co-ordination of policy work and formal consultation between Ministers and officials, complementing other contacts, as well as considering other specific issues mentioned above. It would propose to work with the other administrations to place the Joint Ministerial Committee on a sound footing. This could include re-establishing the plenary meeting and considering the scope of a range of sub committees to conduct more detailed work. The Joint Ministerial Committee could also ensure that the Memorandum of Understanding and bi-lateral concordats provide a sound framework for joint working within the United Kingdom.

What about representation at the EU level?

  28.  The position of the Scottish Government is that Scotland would best be represented in the EU as an independent nation in same way as similar nations, such as Ireland, Denmark or Sweden. Whilst Scotland remains within the United Kingdom, however, there are important deficiencies in current arrangements which require to be addressed. In particular, there is a need to make progress in relation to recognition of a formal role for Scottish Ministers in leading on key issues, through reform of the manner in which United Kingdom negotiating positions are developed, and by building on the potential of the existing Joint Ministerial Committee Europe (JMC(E)).

  29.  The current devolution settlement reserves to the United Kingdom Parliament responsibility for EU affairs. The Scottish Parliament and devolved assemblies are bound by decisions taken at EU level, many of which are in devolved areas and to which they are not party (although they might have to implement those decisions), which prevents the Scottish Parliament and Scottish Government from exercising fully their devolved responsibilities. The Scottish Government therefore places an emphasis on working effectively with the United Kingdom Government on EU matters to secure legislative outcomes from EU negotiations that reflect Scottish interests.

  30.  The Scottish Government attaches particular importance to the provisions in the Concordat on Co-ordination of European Union Policy Issues covering the provision of information and formulation of United Kingdom policy. Scottish Government Ministers and officials discuss EU issues with their counterparts regularly to bring Scottish interests to the attention of United Kingdom Ministers during the preparation of United Kingdom negotiating lines. Scottish Ministers also participate actively in JMC(E) and are keen to see the Committee's potential as a forum for discussion of negotiating lines on important EU dossiers of particular interest to the devolved administrations fully realised.

  31.  Nevertheless, in the absence of any formal obligation on United Kingdom Ministers to take account of Scottish interests, even in devolved areas affected by EU decisions, public confidence in the effectiveness of the Concordat must rest on a belief that United Kingdom Ministers will balance Scottish interests fairly with those of other parts of the United Kingdom. The full involvement of Scottish Ministers is essential to this confidence, and to counter any issues raised by the "double hat" that United Kingdom Ministers and officials often wear in representing mainly English interests during the policy development stage and then the United Kingdom as a whole in EU negotiations.

  32.  The Scottish Government has its own representative office in Brussels, the Scottish Government EU Office (SGEUO). It enjoys a close and productive working relationship with the United Kingdom Permanent Representation to the EU (UKRep) and formally forms part of UKRep, although its staff report to Scottish Ministers.

  33.  The Scottish Government places emphasis on building relations with the key EU institutions. Scottish Ministers, in agreement with United Kingdom Ministers, often attend meetings of the Council of Ministers when items of importance to Scotland or within devolved competence are under discussion. On some occasions they have led and spoken on behalf of the United Kingdom delegation. Scottish Government officials attend Council Working groups and Commission management committee meetings on a regular basis, as part of the United Kingdom delegation, in agreement with the lead United Kingdom Department and UK Rep. There are subjects—such as fisheries—where greater expertise is to be found in the Scottish Government than the United Kingdom Government, and where the activity is of greater economic significance and governmental concern in Scotland than other parts of the United Kingdom. Here, it would make sense to organise United Kingdom representation at Council on the basis that the Scottish Cabinet Secretary normally leads at the Council on behalf of the agreed United Kingdom position and has the lead role in developing that position in the way currently undertaken by DEFRA.

  34.  The Scottish Government works very closely with all seven Scottish Members of the European Parliament (MEPs), ensuring that they are kept updated on issues of importance to Scotland. Scottish Ministers and officials have also visited the European Parliament to discuss EU policies directly with relevant MEPs, rapporteurs and Committee Chairs.

  35.  Scottish Government officials (Scotland and Brussels-based) have regular and direct contact with officials in the European Commission often presenting specific Scottish circumstances at the early stages of EU policy development. Ministers also have a strong record of engagement with the European Commission and a number of European Commissioners have met with Scottish Government Ministers both in Scotland and Brussels for constructive bilateral discussions on their portfolio areas. The stronger this role, the better for Scotland.

  36.  The Scottish Government has also contributed to the development of EU policy through participation in representative bodies including the Conference of European Regions with Legislative Powers (REGLEG) and the Conference of Peripheral and Maritime Regions of Europe (CPMR). It maintains close contact with Scottish members of the EU's two advisory bodies, the Committee of the Regions (CoR), and the Economic and Social Committee.

What is the future of the current Secretaries of State for Scotland, Wales and Northern Ireland? Are the current arrangements for the Wales and Scotland Offices within the MoJ appropriate?

  37.  The Scottish Government believes there is no need for a Secretary of State for Scotland or a Scotland Office. The Government believes the interests of Scotland in reserved and devolved matters are better represented to the United Kingdom Government directly, by Scottish Ministers building relationships with their United Kingdom counterparts. The principal relationship for the First Minister of Scotland, as for the First Ministers of the other devolved administrations, is with the Prime Minister. The Scotland Office has direct responsibility for very few issues, and the Scottish Government notes that it has recently been heavily criticised for its performance of one of its main functions, the organisation of elections to the Scottish Parliament, by the independent Gould report.[46]

  38.  There remains an important role within the United Kingdom Government in ensuring that the role and interests of the devolved administrations are properly understood and recognised by United Kingdom Government departments, particularly around issues such as the United Kingdom legislative programme. The Scotland Office carries out this role at the moment, but the Scottish Government believes this would be better delivered by strengthening the co-ordinating machinery of the United Kingdom Government, as discussed above. Any other residual functions of the Scotland Office, such as responsibility for elections to the Scottish Parliament, should be devolved to the Scottish Government (as recommended by the Gould report).

Devolution and the Courts: have there been legal disputes in the context of devolved/reserved issues and policy divergence?

  39.  No cases have arisen which have invoked the formal dispute resolution arrangements provided for in section 33 (Scrutiny of Bills by the Judicial Committee) of the Scotland Act 1998.

  40.  As discussed above, in the changed political environment within the United Kingdom, there are attractions in strengthening other institutional structures in a way which enhances and builds upon existing dialogue and co-operation between administrations, perhaps to provide a more formal process for resolving disputes short of action in the courts.

  41.  However, it was also clearly envisaged in the original design of the current devolution arrangements for Scotland that there may occasionally be disputes between central and devolved institutions which would require resolution through legal processes. In the view of the Scottish Government, recourse to legal action in future should remain very much the exception rather than the rule. The strong preference of the Scottish Government is for matters which might give rise to potential disputes to be addressed and resolved in the course of the conduct of normal relations and dialogue between Ministers, rather than in the courts. Where this cannot be done in the context of bilateral discussions, the existence of a functioning Joint Ministerial Committee structure would provide an appropriate forum in which to seek to resolve potential difficulties.

  42.  The forthcoming establishment of the United Kingdom Supreme Court will create a new institutional framework for the judicial scrutiny of devolution issues. The Scottish Government will monitor closely the process of transition to the new arrangements and will seek to ensure adequate representation of judges expert in the law of Scotland within the Supreme Court.

What are the other outstanding issues around reserved and devolved issues? How could these be best resolved? Is the United Kingdom's model of asymmetric devolution sustainable?

What are the broader consequences of devolution for the future of the United Kingdom's constitution?

  43.  Questions 7 and 8 raise issues which are broadly similar to those already addressed. The Scottish Government believes that there are significant difficulties associated with the United Kingdom's model of asymmetric devolution.

  44.  The Scottish Government's preferred solution to these is to move to a situation in which Scotland becomes fully independent. This does not mean, however, that difficulties with the existing constitutional arrangements can simply be ignored while Scotland remains within the United Kingdom. The need to improve existing structures applies whatever constitutional position is adopted. It is true equally for those who favour greater devolution, fiscal autonomy, a formal federal structure or full independence.

  45.  The case for each of these options is one which needs to be made by their respective proponents. In Choosing Scotland's Future, the Scottish Government has sought to lay out some of the potential arguments for further devolution, whilst making clear that its preferred option is for Scottish independence. The Scottish Government firmly believes that it is legitimate for it to initiate and contribute to a national conversation about Scotland's constitutional future, including detailed consideration of matters that are currently reserved. The structure of the Scotland Act 1998, and the history of the development of the settlement by the devolved Scottish administration and the United Kingdom Government since devolution, clearly shows that the boundaries of current devolved responsibilities are matters which the Scottish Government and Parliament can and should consider. The Scottish Government also believes it is legitimate for it to promote public discussion in Scotland of matters of wider interest to Scotland, such as defence and foreign affairs.

  46.  As has been argued above, the minimum which now needs to be done at a United Kingdom level is for all administrations to commit seriously to the task of re-invigorating and further developing existing features of the constitution, such as the Joint Ministerial Committee, and to continue to build on the successful work which has been done in the British Irish Council, while engaging positively with discussions on further constitutional development in the devolved administrations.

  47.  Given the widespread support for significant constitutional development, the Scottish Government would again highlight the absence of a discussion of this issue from the United Kingdom Government's green paper on The Governance of Britain. An active debate on constitutional matters is already in progress across the whole of the United Kingdom whether that be in relation to "the English question", Scottish independence or the potential transfer or further powers to devolved administrations. Other issues of considerable constitutional, political and social importance have been highlighted by initiatives such as the Power Inquiry, the Arbuthnott Commission, and in Scotland by the Steel Commission.

  48.  Against that background, it is not possible to regard the existing constitutional settlement as fully satisfactory or as an event which has passed and need not be revisited or reviewed. There is no question that developing the governance of the United Kingdom is a process which needs to progress further. The Scottish Government is promoting a full and properly informed debate in Scotland about the form such progress should now take and would be happy to contribute further evidence to the Committee in the course of its deliberations.

October 2007

45   See, for example, the inaugural declaration signed in 1989 by all members of the Scottish Constitutional Convention: "We, gathered as the Scottish Constitutional Convention, do hereby acknowledge the sovereign right of the Scottish people to determine the form of Government best suited to their needs, and do hereby declare and pledge that in all our actions and deliberations their interests shall be paramount." Back

46   Independent review of the Scottish Parliamentary and local government elections-3 May 2007, published by the Electoral Commission on 23 October 2007. Back

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