House of Commons Scottish Affairs Committee Scotland and the UK: cooperation and communication between governments Fourth Report of Session 2009–10 Report, together with formal minutes, oral and written evidence Ordered by the House of Commons to be printed 23 March 2010 HC 256 Published on 31 March 2010 by authority of the House of Commons London: The Stationery Office Limited £0.00 The Scottish Affairs Committee The Scottish Affairs Committee is appointed by the House of Commons to examine the expenditure, administration, and policy of the Scotland Office (including (i) relations with the Scottish Parliament and (ii) administration and expenditure of the offices of the Advocate General for Scotland (but excluding individual cases and advice given within government by the Advocate General)). Current membership Mr Mohammad Sarwar MP (Labour, Glasgow Central) (Chairman) Mr Alistair Carmichael MP (Liberal Democrat, Orkney and Shetland) Ms Katy Clark MP (Labour, North Ayrshire & Arran) Mr Ian Davidson MP (Labour, Glasgow South West) Mr Jim Devine MP (Independent, Livingston) Mr Jim McGovern MP (Labour, Dundee West) David Mundell MP (Conservative, Dumfriesshire, Clydesdale and Tweeddale) Lindsay Roy MP (Labour, Glenrothes) Mr Charles Walker MP (Conservative, Broxbourne) Mr Ben Wallace MP (Conservative, Lancaster & Wyre) Pete Wishart MP (Scottish National, Perth and North Perthshire) The following members were also members of the committee during the Parliament: Danny Alexander MP (Liberal Democrat, Inverness, Nairn, Badenoch & Strathspey) Gordon Banks MP (Labour, Ochil and South Perthshire) Mr David Hamilton MP (Labour, Midlothian) Mr John MacDougall MP (Labour, Glenrothes) Mr Angus MacNeil MP (Scottish National, Na h-Eileanan an Iar) Powers The committee is one of the departmental select committees, the powers of which are set out in House of Commons Standing Orders, principally in SO No. 152. These are available on the Internet via www.parliament.uk. Publications The Reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee (including press notices) are on the Internet at www.parliament.uk/scotaffcom. Committee staff The current staff of the Committee are Nerys Welfoot (Clerk), Alison Groves (Second Clerk), Ameet Chudasama (Committee Assistant), Becky Crew (Committee Assistant), Karen Watling (Committee Assistant) and Karuna Bowry (Committee Support Assistant). Contacts All correspondence should be addressed to the Clerk of the Scottish Affairs Committee, House of Commons, 7 Millbank, London SW1P 3JA. The telephone number for general enquiries is 020 7219 6123; the Committee’s email address is [email protected]. Scotland and the UK: cooperation and communication between governments 1 Contents Report Page Summary 3 1 Introduction 5 The Scottish Parliament’s Justice Committee inquiry 5 Evidence received 6 2 Background 7 Memorandum of Understanding and protocols between the UK and devolved administrations 7 Protocol for avoidance and resolution of disputes 9 Other inquiries into intergovernmental relations 11 House of Commons Justice Committee 11 Commission on Scottish Devolution 11 Welsh Affairs Committee 12 3 The framework for intergovernmental relations 13 Introduction 13 The role of the Scotland Office 13 Joint Ministerial Committee 15 Improving transparency of the JMC 17 Interaction between civil servants in Scotland and Whitehall 18 4 International agreements directly affecting Scottish interests: case study Libya 23 Introduction 23 The “deal in the desert” 24 Arrangements on foreign affairs and the negotiation of the Memorandum of Understanding between Libya and UK 24 Negotiation of the Prisoner Transfer Agreement between Libya and the UK27 Decision to reject the application for a prisoner transfer for Mr al-Megrahi 29 Decision to release Mr al-Megrahi on compassionate grounds 31 5 Scotland and the EU 35 Representation of Scotland at EU level 35 Joint Ministerial Committee (Europe) 36 UK Representation to the EU 38 Representation at the EU Council of Ministers 39 The regional dimension of the EU and subsidiarity 42 Scottish Executive Scrutiny 43 6 Conclusion 45 Conclusions and recommendations 47 2 Optional header Formal Minutes 50 Witnesses 51 List of written evidence 51 List of Reports from the Committee during the current Parliament 52 Scotland and the UK: cooperation and communication between governments 3 Summary This Report examines the arrangements in place for communication between the UK Government and Scottish Executive, particularly when the UK Government formulates international policy which will specifically affect Scottish interests and devolved matters. Generally there are effective channels of communication at both ministerial and official level between the two governments. Whitehall tends to overlook the Scottish angle of policy and legislation more often in those departments which are unfamiliar with devolved matters. We recommend that the Government ensures that each department has a devolution champion, who enjoys some continuity in that post, to ensure that there is a good level of awareness of devolution issues and that this awareness is maintained. The revival of the Joint Ministerial Committee should provide an important forum for discussion between Ministers of the UK Government and devolved administrations. However, there is little opportunity for parliamentary scrutiny of the outcomes and effectiveness of the Committee’s meetings. The Government should publish agenda and timetables of Joint Ministerial Committees to allow more light to be cast on the intergovernmental cooperation process. We encourage the UK Government to provide opportunities for Scottish Ministers to participate in European Council meetings, where appropriate and where there is agreement between the two governments on the line to take in negotiations. We welcome the publication of the new Protocol for Avoidance and Resolution of Disputes as the 2001 Memorandum of Understanding between devolved administrations and the UK Government previously did not provide adequate guidance on how disputes between the UK and Scotland should be resolved. This was demonstrated during the communications between the governments on the UK’s negotiations with Libya on the Prisoner Transfer Agreement. The announcement that a revised devolution Memorandum of Understanding has been agreed is welcome, and we invite our successor Committee to scrutinise the new text of both the Memorandum once it has been published, together with the new disputes Protocol. We recognise that good cooperation and communication between Governments cannot depend on a formal Memorandum of Understanding and the education of civil servants alone. It is necessary for both Governments to display the necessary political will to ensure that both understand each other’s point of view and demonstrate the mutual respect which should characterise all their dealings. Scotland and the UK: cooperation and communication between governments 5 1 Introduction 1. On 20 August 2009 the Scottish Cabinet Secretary for Justice, Mr Kenny MacAskill MSP announced his decision to release the man convicted of the Lockerbie bombing on compassionate grounds. The reaction around the world to Mr Abdelbaset al-Megrahi’s release, and the press speculation surrounding the circumstances of the signing of the Prisoner Transfer Agreement between Libya and the UK, highlighted how Scottish decisions on devolved issues can impact UK interests and how UK foreign policy can impact on Scottish interests. On 21 October 2009 we agreed to hold an inquiry into the arrangements in place for communication between the UK Government and the Scottish Executive when the UK Government formulates international policy which will specifically affect Scottish interests and devolved matters, with specific reference to the case of Mr al- Megrahi. 2. The terms of reference for the inquiry were: • Whether there are effective channels of communication between the UK Government and Scottish Executive to ensure that each is informed and can comment on decisions and policy of both administrations that affects the other; • In particular, whether there are satisfactory arrangements in place between the UK Government and Scottish Executive to assess effectively the impact of UK foreign policy on Scottish interests and vice versa; • How these arrangements functioned during the negotiations with Libya including the Prisoner Transfer Agreement (PTA) and the consideration by the Scottish Executive of the PTA application from Libya; • How could the Joint Ministerial Committee be better used to improve the working relationships between the UK Government and Scottish Executive; and • How will the revised Memorandum of Understanding and concordats between the UK Government and Scottish Executive improve matters.1 3. We decided that the inquiry would also include examination of the coordination between the UK Government and Scottish Executive in representing Scotland’s interests to the EU as well as Scotland’s interface with individual EU institutions. We had previously announced an inquiry into Scotland and the EU in July 2008 and requested written evidence on the representation of Scotland’s interests in EU policy making. We agreed to incorporate our previous inquiry into Scotland and the EU into our new inquiry. The Scottish Parliament’s Justice Committee inquiry 4. The Scottish Parliament’s Justice Committee has recently concluded its own inquiry into the Scottish