UK Government response
This memorandum provides the Government's response
to the conclusions and recommendations in the Scottish Affairs
Select Committee's report 'Co-operation and Communication between
Governments' (HC 256), which was published on 31 March 2010.
Introduction
The Committee's Report was published on 31 March,
just prior to the prorogation of Parliament for the General Election
held on 6th May 2010. The recommendations and conclusions
outlined in the Committee's Report relate to events that occurred
during the previous Government's term of office. While we do
not intend to comment on the actions or decisions of the previous
Government, this Response provides details of this Government's
assessment of the recommendations. This Government is committed
to working constructively with the devolved institutions. The
Prime Minister travelled to Edinburgh to meet the First Minister
of Scotland and the Presiding Officer of the Scottish Parliament
as one of his first priorities, and the Secretary of State for
Scotland appeared before the Scottish Parliament on 17 June. This
Government will continue to build on our progress thus far, and
to ensure that our dealings with the Devolved Administrations
are based on the principles of co-operation and mutual respect.
We note the Committee's recommendations with interest. This Government
looks forward to working with the Scottish Affairs Select Committee
and would welcome an early opportunity to engage with the Committee.
Response to Recommendations and
Findings
Recommendation 1
We conclude that it is of great importance for
the wellbeing of the people of Scotland that there is constructive
and effective communication between the Scottish Executive and
the United Kingdom Government and we recommend that our successor
Committee in the new Parliament continue to scrutinise relations
between the two governments (paragraph 8)
This Government is fully committed to engaging with
all three Devolved Administrations with an agenda of mutual respect.
One of the Prime Minister's first priorities was to have a useful
and productive meeting with the First Minister of Scotland. We
recognise the value that devolution delivers to people across
the United Kingdom and we are committed to maintaining and supporting
devolution and the Devolved Administrations and legislatures.
We are committed to regular exchange of information between UK
Ministers and counterparts in the Devolved Administrations and
their legislatures and we look forward to constructive engagement
with the Scottish Government, in the interests of people in Scotland
and the rest of the UK.
Recommendation 2
We conclude that an updated Memorandum of Understanding
between the UK and Devolved Administrations is long overdue.
We therefore urge the Government to publish the agreed revised
version as soon as possible. We welcome the publication of the
Protocol for Avoidance and Resolution of Disputes which sets out
the process for consideration of disagreements at official level
and disputes at Ministerial level as we were not convinced of
the need for an external arbiter. We recommend that the Joint
Ministerial Committee review the Memorandum of Understanding at
least every three years to ensure that it remains fit for purpose
and should monitor the implementation of the new Protocol (paragraph
24)
The revised Memorandum of Understanding was published
by the previous Government and presented to Parliament on 30 March.
This document was also laid before the respective devolved legislatures
and was the product of discussion and agreement between the then
UK Government and the Devolved Administrations in Scotland, Wales
and Northern Ireland. The revised Memorandum of Understanding
builds on the principles set out in the original Memorandum: cooperation,
communication and respect - this Government is committed to these
key principles.
The revised Memorandum of Understanding incorporates
the Protocol for Avoidance and Resolution of Disputes published
after the Joint Ministerial Committee (Domestic) meeting on 10
March. This text sets out in greater detail the principles for
dispute resolution that were contained in the original and updated
Memorandum of Understanding. This Government welcomes a set of
clear processes for resolving disagreements and disputes at both
official and Ministerial level. But our aim will be to avoid disputes
whenever possible and to work constructively and cooperatively
with the Devolved Administrations.
This Government believes that constructive communication
and interaction between the Administrations within the UK at both
official and Ministerial level will assist to minimise areas
of dispute and ensure more informed policy discussion and development.
The Memorandum of Understanding includes a commitment that the
document will be reviewed at least annually by the Joint Ministerial
Committee.
Recommendation 3:
We conclude that it remains a challenge for the
Secretary of State to prove the value of his role to the current
Scottish Executive. However, we recommend that the Scottish Executive
recognise the Secretary of State's role as custodian of the Scotland
Act and work with the Secretary of State to improve communication
and cooperation between UK and Scottish Governments where possible.
We welcome the introduction of the new Protocol for Avoidance
and Resolution of Disputes which ensures that the Secretary of
State is involved in the process aimed at resolving disagreements
between administrations (Paragraph 39).
This Government remains committed to the role of
the Secretary of State for Scotland. We believe that it is vital
for the interests of all the Devolved Administrations to be represented
at the Cabinet table, not least at this time of economic and financial
challenges and given the ambitious proposals we have set out to
facilitate further devolution of powers to Scotland. The Secretary
of State for Scotland will play a full and active role in policy
formulation, ensuring that the devolution settlement in Scotland
is fully respected during policy development, and also ensuring
that the UK Government is represented in Scotland. We welcome
the Committee's recommendation that the Scottish Government work
constructively with the Secretary of State for Scotland in the
interests of people in Scotland and across the UK.
Whilst it is this Government's intention to work
constructively in the avoidance of disagreements and disputes,
we agree with the Committee's comments on the vital role that
the Secretary of State for Scotland should play, when necessary,
under the terms of the Protocol for Avoidance and Resolution of
Disputes.
Recommendation 4
We note the Secretary of State's concern that
he is not copied routinely into correspondence sent from the
Scottish Executive to UK Departments. We encourage the Scottish
Executive to copy the Scotland Office into intergovernmental correspondence
in future, as better and more open lines of communication are
likely to enable the Scotland Office to offer its assistance to
discussion at an earlier stage. (Paragraph 40).
We welcome the Committee's encouragement to the Scottish
Government to copy the Secretary of State for Scotland into all
correspondence. This Government does not see the role of the
Secretary of State for Scotland to act as an intermediary in direct
and constructive bilateral relations between UK Departments and
their Scottish Government equivalents, but we do share the Committee's
assessment that the Scotland Office plays an important role in
supporting the full consideration of Scottish interests in policy
formulation and development. Such action on the part of the Scottish
Government will help ensure that the Scotland Office is best placed
to help early identification of any areas of contention and work
with relevant parties (in both the Scottish Government and in
Whitehall) to resolve them satisfactorily.
Recommendation 5
Whist we acknowledge that a formal framework for
intergovernmental communication between the UK and Devolved Administrations
cannot prevent conflict or dispute, we consider that it is healthy
for robust debate and discussion to take place between Ministers
on a regular basis. We conclude that it was regrettable that
the plenary meetings of the Joint Ministerial Committee, together
with the previous sub-committees, fell into abeyance in the years
2002- 2008. It is important for the UK Government and Devolved
Administrations to meet regularly to discuss areas of joint concern
affecting citizens across the UK. We recommend that the Government,
in its response to this Report, set out the formal arrangements
in place to ensure that Joint Ministerial Committee meetings continue
so that our successor Committee can monitor the effectiveness
of those structures (Paragraph 48).
The Government shares the Committee's regret that
the Joint Ministerial Committee structure fell into abeyance between
2002 and 2008. This Government is committed to delivering constructive
working relations between the UK Government and the Devolved Administrations;
it is our assessment that regular bilateral and multilateral engagement
is an important part of this constructive relationship.
This Government is committed to the Joint Ministerial
Committee structure and will keep it under active review to ensure
that it works in the interests of people from across the whole
of the United Kingdom. The JMC Plenary met on 8 June
2010 and had productive discussions on: HM Government's Programme
for Government and the areas of key significance for future discussions
between the four administrations, the economy and public finance;
and: inter-administration relations which agreed a forward schedule
of meetings for the JMC and its sub-committees. The first
meeting of the JMC (Domestic) will take place this Autumn.
Recommendation 6
We conclude that there ought to be greater visibility
of the Joint Ministerial Committee process, whilst still protecting
the confidential nature of the meetings as a forum for frank and
open discussion between Ministers. There would be merit in publishing
timetables and agenda for both plenary and domestic sessions of
the Joint Ministerial Committee. In its Response to our Report
the Government should confirm whether it intends to lay before
Parliament an annual report on the state of relations between
the UK and Devolved Administrations and whether this will include
information on matters discussed at the Joint Ministerial Committees
(Paragraph 51).
The Government agrees that inter-administration relations
ought to be both transparent and effective, and will publish electronically
an annual report on relations between administrations, agreed
between administrations. This was agreed between the previous
Government and the Devolved Administrations in the March JMC(D),
and the Government will abide by that agreement. The Plenary meeting
of the JMC agreed the publication by each administration of an
annual report detailing formal activity between the four administrations
since the last Plenary meeting on 16th September 2009.
This annual report is available on the Cabinet Office's website
at http://www.cabinetoffice.gov.uk/media/415286/jmc-annual-report2009.pdf.
Recommendation 7
We welcome the action that the Government is taking
to improve the knowledge of devolution matters amongst civil servants
which has been shown to be occasionally wanting in the areas of
Whitehall which have little to do with devolved issues or Scotland.
We recommend that the Ministry of Justice ensures that each department
has a "devolution champion" at senior level to ensure
that structures are put in place to achieve and maintain higher
levels of devolution awareness amongst staff. (Paragraph 62).
As a result of recommendations and findings from
the Calman Commission, the UK Government undertook an audit of
its devolution capability between October 2009 and March 2010
which agreed a series of actions for improvement - one of these
was that each department should identify a senior devolution champion.
All departments have now identified at least one senior member
of staff as their devolution champion. It was also agreed that
these leads should form a network across Whitehall and meet periodically.
A first meeting of these departmental leads took place on 15th
April and we expect a second meeting to take place this summer.
Recommendation 8
The Concordat on International Relations between
Scotland and the UK clearly states that the Government should
provide Scottish Ministers with information and advice on international
developments that may affect their devolved responsibilities.
Although the Concordat is not a legally binding document, we
conclude that it was regrettable that the UK Government did not
advise the Scottish Executive of the terms of the Memorandum of
Understanding between Libya and the United Kingdom relating to
the devolved matter of justice prior to signing. (Paragraph 75).
Recommendation 9
In future, the UK Government must consider whether
the interests of confidentiality outweigh the responsibility it
has to keep the Scottish Executive informed of international agreements
made on its behalf, particularly in cases such as this where Scottish
Ministers will be forced to make decisions on highly emotive and
controversial devolved matters as a result (Paragraph 76).
[Note - recommendation 8 & 9 answers combined]
The UK Government is committed to the principles
of co-operation and communication with the Devolved Administrations,
including the Scottish Government, as enshrined in the Memorandum
of Understanding and Concordats. As recommended, in future
the Government will consider carefully the appropriate balance
between interests of confidentiality and the responsibility to
keep the Scottish Government informed of international agreements
made on its behalf. This includes consultation with the Devolved
Administrations on matters relating to international relations
which touch upon devolved matters. The signature of the Memorandum
with Libya, as understanding between states, was rightly for UK
Government, respecting the reservation of foreign affairs. The
Memorandum recognised the different jurisdictions and explicitly
stated that the UK Government would seek to obtain the agreement
of all three jurisdictions in relation to devolved matters.
Recommendation 10
It is not within our remit to judge whether the
benefits of the Memorandum of Understanding and Prisoner Transfer
Agreement between UK and Libya were worth the concessions that
had to be made by the UK negotiating team. However, the disagreement
between the UK and Scottish Governments over the Prisoner Transfer
Agreement throws up the question of how fundamental differences
in opinion between the UK Government and Devolved Administrations
can be resolved. Whilst we acknowledge that decisions on foreign
affairs will always rest with the UK Government, we conclude that
communications between Whitehall and Scotland at earlier stage
during the Memorandum of Understanding negotiations could have
produced a more satisfactory outcome with a possible carve-out
for Mr al-Megrahi. We recommend that the Joint Ministerial Committee
examine what lessons can be learned from the disagreement during
negotiations over the prisoner transfer agreement. (Paragraph
84).
Ministers will always wish to use the meetings of
the Joint Ministerial Committee to discuss how relations can be
improved. We believe that there are significant lessons from this
disagreement that have already been learnt, not least from the
Scottish Affairs Committee's helpful report. The Government's
priority is to build more positive relations with the Scottish
Government in all areas.
Recommendation 11
We conclude that under the Concordat of International
Relations, the United Kingdom Government had an obligation to
provide relevant and comprehensive information and analysis to
the Scottish Executive on the agreement made between the US and
UK Governments on where Mr al-Megrahi would serve his prison sentence.
Although the Scottish Executive was informed by the UK Government
that there was no legal barrier to a transfer under the Prisoner
Transfer Agreement, there is a disagreement between governments
over whether the information provided to the Scottish Executive
was comprehensive enough. (Paragraph 90).
This recommendation relates to the actions of the
previous administration, on which we do not propose to comment.
As is their right under the devolution agreement, the Scottish
Government asked for advice on the international legal aspects
of transferring Mr al-Megrahi. The FCO provided advice to
the Scottish Government on two occasions, making it clear on both occasions that
it saw no international legal bar to Mr al-Megrahi's transfer.
Mr Ivan Lewis, the relevant Minister of State at the time, provided
this advice.
Recommendation 12
We conclude that it would be helpful if in future
the UK Government could respond to requests for information from
the Scottish Executive with either the relevant documentation
or a clear explanation as to why it is not possible to provide
the information so as to reduce the possibility of disagreements
between the two Governments. (Paragraph 91).
The Memorandum of Understanding commits all administrations
to provide information as fully and openly as possible to one
another, and to safeguard the confidentiality of documents. The
Government is committed to this approach.
Recommendation 13
We conclude that the discussions between the UK
Government and the Scottish Executive in the run up to the announcement
of Mr al-Megrahi's release on compassionate grounds are a good
example of how close cooperation and communication, even on the
most sensitive and confidential of matters, can enable departments
to plan for the impact on the UK of the decisions of Devolved
Administrations. However, we consider it unfortunate that the
official response of the UK Government to Mr al-Megrahi's release
in August 2009 did not reflect either the careful planning undertaken
by both Governments beforehand or the information provided in
the measured statement of the Foreign Secretary to the House of
Commons on 12th October 2009. As a result, it appeared
that the UK Government had not fully anticipated either the immediate
media reaction of the subsequent international response. This
is a matter for the UK Government to ponder. (Paragraph 104).
This recommendation relates to actions of the previous
Government, on which we do not propose to comment. However we
have taken careful note of the committee's observations.
Recommendation 14
We conclude that whilst there are sensible reasons
for not disclosing the substance of discussions at Joint Ministerial
Committee (Europe) meetings, there would be merit in publishing
a timetable and agenda for the four meetings a year to provide
some element of transparency to proceedings. In its Response
to our Report the Government should provide details of what extent
the confidentiality provision of the Concordat on coordination
of European Union policy issues might be relaxed to allow Scottish
Ministers to give evidence to the Scottish Parliament External
and European Relations Committee in private. (Paragraph 118).
The Government agrees that inter-administration relations
ought to be both transparent and effective, and to that effect
the annual report on relations between the administrations contains
information on the activities of the Joint Ministerial Committee(Europe).
Timetables and agendas are not currently published, but we are
looking, in cooperation with the Devolved Administrations, at
ways of continuing to improve the process. It is for the Scottish
Parliament and the Scottish Government to determine arrangements
for Scottish Ministers to give evidence to Scottish Parliament
committees. The Government underlines the importance of ensuring
that the information shared with the Scottish Government in relation
to EU policy and negotiations is treated in line with the confidentiality
provision of the Concordat.
Recommendation 15
We conclude that if it would be helpful to the
UK to have a particular Minister from one of the Devolved Administrations
in the chair, then the responsible UK Minister should ensure that
this happens where possible. From the evidence that we have received,
the UK Government appears to be open to this. However, we conclude
that it is reasonable for the UK Government to prefer a UK civil
servant to take the chair in preference to a devolved administration
Minister if the devolved administration does not agree with the
UK negotiating line. We recommend that in such cases, the UK
Government should provide appropriate notice to the devolved
administration of its intention to field a civil servant in preference
to one of its Ministers. (Paragraph 129).
The Government believes that the Devolved Administrations
can and should make an important contribution to the preparation
and presentation of UK EU policy. We will work closely with the
Devolved Administrations, through the JMC(Europe) and other bilateral
contact when developing the UK line. Furthermore we are committed
to including Ministers from the Devolved Administrations in delegations
to attend EU Council meetings when devolved matters are up for
discussion; each and every request will be considered carefully
and lead UK Ministers will be encouraged to accept such requests
whenever possible. When part of a delegation, Ministers from Devolved
Administrations should be able to play a full and active part
in the delegation with the agreement of the lead UK Minister,
on the basis that they will be representing the agreed UK line.
We are determined to have, from official to ministerial
levels, a more constructive engagement with the Devolved Administrations.
13 July 2010
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