Memorandum submitted by the Scottish Government
INTRODUCTION
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 http://www.scotland.gov.uk/Publications/ 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.
RESPONSE
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
| 
