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Lord Mackay of Ardbrecknish: My amendment, Amendment No. 291ZA, is linked with the amendment of my noble friend, who has explained his amendment. We discussed concordats at some length in Committee on the Welsh Bill, and, to be honest, I am not entirely sure that we arrived at a satisfactory outcome. The position of the Welsh Bill was a little different in that the devolution to the Welsh assembly is not as significant as will be the devolution to the Scottish parliament. Therefore, I believe there are some differences, one of which is that all the concordats between the Welsh and the UK had to be made in the name of the Welsh assembly because that was how the Welsh legislation was devised. The Welsh assembly was one party and the UK Government was the other. In Scottish terms, I presume, the situation is a little different because the executive has a different role, and, therefore, the concordat may be between ministers of the Scottish parliament and Ministers of the UK Parliament, or between officials of the Scottish executive and UK officials.
My amendment and to a certain extent that of my noble friend explore how Members of your Lordships' House, Members of the House of Commons, ordinary members of the Scottish parliament and the Scottish public can find out about concordats. Will they be part of the open government system or of the secret government system?
My amendment states that any concordat relating to a devolved matter to be discussed at the Council of Ministers or to be made subject to representations to the European Commission should have to come before Parliament. We are dealing specifically with the raft of concordats that will surround the problems that we have already discussed relating to the relationship of the Scottish parliament and executive to the European Union through the United Kingdom Parliament. Such concordats should have to be laid before Parliament, be approved by a resolution of both Houses and be signed by a member of the Scottish executive and a Minister of the Crown, In other words, I want to give them some proper status. I shall not say "legal status" because such
issues will be addressed by my noble and learned friend Lord Mackay of Drumadoon, but they should be given proper and open status.The second part of my amendment deals with concordats on the financial dealings between the two parliaments. The same procedure should apply there also.
In a way, this is a probing amendment, but it is a little more than that. I want to know how the Government see concordats being publicised. I want to know how their existence will be made known both to the parliament in Scotland and to that here in the UK. I have no strong views on this. I have been through all this in the Welsh Bill, so I know where I stand on this in relation to the Government. I am asking in my amendment that the concordats should be laid before both Houses of this Parliament and, indeed, before the Scottish parliament, and that they should be approved. Frankly, I am relaxed about their approval because I know from the Welsh Bill that Ministers are determined that parliamentary scrutiny of concordats will not be allowed. I disapprove of that. I think that parliamentary scrutiny of concordats should be allowed, but I recognise an intransigent government when I see one. Unless the Scottish Office is a good deal more open to argument than was the noble Lord, Lord Williams of Mostyn, I am probably wasting my time.
However, at a minimum, I think that concordats should be laid before both Houses here as parliamentary papers, or whatever. Every day our Order Paper, and that of another place, contains a list of papers to be laid before the House. They do not have to be debated and one cannot table negative resolutions, but the papers are listed and are drawn to Members' attention. We can access them. We can get at them. We know what they say. In the Welsh Bill, we were told that some concordats would be kept secret. We never managed to tease out of the Minister what possible material might have to be kept secret in concordats between the Welsh assembly and here. We drew a blank. We came up against a brick wall. I hope that there is no brick wall here.
Will any concordats be kept secret or will they all be made public? How will they be made public? Will they be laid before both Houses? Are the Government prepared to go further and to have them approved by both Houses here and by the Scottish parliament? I ask that because the position of MSPs must also be addressed. I may not be among those of your Lordships who fancy themselves as an MSP, but I do believe that MSPs have a right of scrutiny of concordats, just as I believe that Westminster has that right.
My amendment is very much a probing amendment. I hope that the Minister will not spend too much time taking a knock at it, but that he will use it as a vehicle to explain how he sees concordats working in the context of the Scotland-United Kingdom relationship. I hope that I shall get better answers than I received
from the noble Lord, Lord Williams of Mostyn, on the question of concordats between the Welsh assembly and the United Kingdom.
Lord Sewel: I certainly do not wish to knock the noble Lord's amendment; indeed, I always try to respond as positively and as helpfully as I can. As the guidance note which my right honourable friend the Secretary of State made available on 27th February made clear, the purpose of concordats is to promote effective communication and good administrative practice in relations between UK government departments and the Scottish executive. Essentially, they are documents about working arrangements.
Concordats arise from the statement in the White Paper that the Scottish executive will need to keep in close touch with departments of the UK Government and that good communication systems would be vital. They will cover a range of matters, such as procedures for the exchange of information, advance notification and joint working. It is intended that concordats will provide the Scottish executive and UK departments with confidence that working relationships will be conducted properly and in accordance with agreed procedures. It is not intended that they should constrain the Scottish executive within its fields of competence, nor that they should constrain UK departments in reserved areas.
It is important to recognise the limitations of what it is intended to achieve through concordats. These agreements will not make provision in respect of matters more properly dealt with on the face of the Bill. They are not intended to create legal obligations upon either party; nor are they a means for avoiding proper scrutiny either by Parliament or elsewhere. Unless it would cause substantial harm on one of the clearly defined grounds set out in the recent White Paper on freedom of information--and only in that context--concordats will, of course, be published. If the noble Lord, Lord Mackay of Ardbrecknish, wishes to push me on whether some concordats will remain secret, I have to tell him that there is a theoretical possibility that some of them may remain so but only in terms covered by the White Paper on the freedom of information. That will be the only basis upon which concordats will not be published.
The work on draft concordats will proceed before devolution, but they cannot be agreed until the Scottish executive is established. The coverage of each agreement will be a matter for the incoming Scottish ministers and the departments of the UK Government to agree, because it is a document which will define relationships between the UK Government and the Scottish executive. I hope that that explanation givesa flavour of the background and of what they are. In a way, I hope that that demystifies the idea of concordats, which I believe have taken on something of a life beyond themselves at present. Indeed, they are not some great and wonderful construction; they are really just pretty ordinary attempts to describe sensible working relationships.
I turn now to Amendment No. 291, which would place several requirements on concordats. The amendment would require concordats to be registered; it would set out rules relating to the jurisdiction of the
courts over them; and also touches upon the matter of the rights of third parties. Requiring concordats to be registered would be unusual and, as I have already indicated, they will be published in the vast majority of cases in any event.Concordats are not intended--and this is important--to create legal obligations on the parties. It cannot be ruled out that they may feature in legal action, and I will say some more in respect of these matters shortly. At this stage, however, I hope that the noble Lord will accept the logic of the argument that, in these circumstances, it would not be appropriate to make rules regarding the jurisdiction of the courts in relation to concordats. These are, of course, working documents intended to aid the process of efficient administration. It is difficult to conceive of a third party wishing to challenge their terms, but where they can conceive of a case for such action there is nothing peculiar about these documents which either would or should prevent them doing so. I hope that the noble Lord will accept those reassurances and that he will feel able to withdraw the amendment.
I move on now to Amendment No. 291ZA, which would introduce a formal parliamentary procedure in relation to concordats dealing specifically with European and financial matters. I am afraid that these non-statutory agreements do not merit this treatment. They are, as I have said, administrative agreements providing for co-operation and exchange of information between the administrations. They are intended to be flexible documents to assist that process and will be reviewed and adjusted in the light of experience. They are very much organic, dynamic documents.
To introduce a formal element of parliamentary scrutiny into these arrangements and thereby put these concordats onto a semi-statutory footing would undermine the flexibility and informality of concordats as instruments for facilitating co-operation between the administrations and give these documents a status which, frankly, they do not merit. The informal process of adjustment and review that is an essential part of these arrangements would probably become subject to parliamentary procedures as well.
It is, of course, the case that the Scottish ministers will always be accountable to the parliament for their policies and will need to be able to justify any approach which is based on arrangements agreed with the UK Government in a concordat, just as the UK Government will be accountable to Westminster in regard to such matters.
Amendment No. 291ZA concerns concordats covering negotiations in Europe and finance. As I indicated in our previous exchange on Europe on 30th July, the essential point is that negotiations with the European Union, including those at the Council of Ministers, are reserved because foreign affairs are reserved and EU negotiations are a foreign affairs matter. The Government fully intend, however, that the Scottish ministers should have a role to play in developing UK positions on EU matters and, where appropriate, in presenting them to the Council. It is therefore made clear in paragraph 7 of Schedule 5 that
the reservation of foreign affairs does not reserve assisting Ministers of the Crown in relation to that matter. The administrative arrangements for how this will be achieved do not change that position in the slightest. They will do no more than set out the practical details relating to that commitment.The proposed EU concordat is intended to facilitate the full involvement of the Scottish ministers and officials in these matters. It will outline an overarching approach to the handling of EU issues between the Scottish ministers and the UK Government. More detailed provisions may, if necessary, be contained in bilateral concordats on specific subjects.
We also dealt with financial arrangements in some detail on 30th July and I would not wish to go over that ground again today. Suffice to say that the Government have made their position on financial arrangements abundantly clear already. I doubt whether the noble Lords are proposing that the block and formula rules should be enshrined in legislation--as I indicated previously, I would certainly not accept that--but it is not entirely clear what would be achieved by the amendment in this regard. Any finance concordat would be likely therefore to be concerned simply with the practical arrangements for implementing agreed (and published) rules and possibly with other practicalities such as the provision of information. It would seem odd to require prior parliamentary approval of these arrangements when the rules themselves are not the subject of legislation.
The important point is that a concordat cannot impose unacceptable requirements upon either the Scottish ministers or the UK Government. Their terms have to be agreed by both administrations and will, as I have said, follow the provisions set out in the Bill. Concordats are intended to help make these arrangements work more efficiently and effectively. It is of course in the interests of both administrations to ensure that these arrangements work effectively and concordats will merely set out practical arrangements to ease that process.
I have spoken at some length on this matter because I have been aware during discussions on the Bill that the idea of concordats has not been an easy one for all noble Lords to grasp. Some have thought that we are creating some new, strange creature under whose auspices just about everything will be ordained, designed and structured. That is not the case. These are modest documents which will set out agreed working relationships between the two administrations.
I take the point made by the noble Lord, Lord Mackay, about open government. I reiterate that the full intention is that they will be published, except in the very exceptional circumstances covered by the freedom of information Act. I hope that on that basis there is enough reassurance for both noble Lords to be able to withdraw their amendments.
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