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Europe and Foreign Affairs: Taking forward our National Conversation

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2 Current Arrangements

2.1. Scotland has made a full contribution to global culture, economy and life over its history. As an outward looking and internationally focussed nation, Scotland's relationship with other world nations has been, and remains, of great importance.

2.2. Much of the business of foreign affairs is conducted in accordance with principles and laws that require a state to be recognised as a full, sovereign member of the international community. This means the rights attached to the United Kingdom are, in general, indivisible i.e. they cannot be exercised separately by any part of the UK, except in the name of the UK as a whole. As a result foreign affairs and international development are explicitly reserved by the Scotland Act 1998. This makes it crucial that the UK Government and Foreign and Commonwealth Office ( FCO) take full account of, and represent Scots and Scotland, so that the single view promoted by the UK fully reflects and promotes Scottish interests.

2.3. The principles underlying the general relationship between the Scottish and UK Governments are set out in the Memorandum of Understanding ( MoU) agreed between the UK and the devolved administrations in Scotland, Wales and Northern Ireland in 1999. Detailed aspects of the relationship regarding EU and international affairs appear in the Concordats on International Relations and EU Policy. 1 The MoU and Concordats set out general principles only. They do not generally establish rights, but they do set out the express intention that the UK will involve the devolved administrations as directly and fully as possible in decision making on EU matters which affect devolved areas.

2.4. The MoU and Concordats are explicitly intended to be binding in honour only, and not to be legally binding. This leaves key decisions, such as whether a devolved Minister can speak at, or even attend, an EU Council where there is devolved interest, at the discretion of the relevant UK Secretary of State, albeit they should be guided by the principles set out in the MoU and Concordats.

Overseas representation

2.5. For the most part, Scotland's interests overseas are represented and pursued by the UK Government and the British Embassy and Consular network. In addition the Scottish Government directly runs 3 offices overseas to represent key Scottish interests.

2.6. The then Scottish Executive established an office in Brussels in 1999 to represent its EU interests. For diplomatic purposes, the staff there form part of the UK's Permanent Representation to the EU ( UKRep). They work from separate offices and although they maintain close and productive working relationships with UKRep, they take their political and policy direction from Edinburgh not London.

2.7. Two smaller offices were opened in Washington in 2000 and Beijing in 2005. These operate from within the British Embassies there. In addition to these Scottish Government offices, Scottish Development International maintains a network of 21 overseas offices across the world pursuing Scottish Government priorities in relation to international trade and inward investment 2. While Scottish officials can and do take active roles in WHO, OECD and UNESCO programmes (for example, a Scottish Director General chairs the OECD's Rural Working Party), Scotland does not have direct representation on key decision-making structures within these organisations.

International Development

2.8. Scotland has a long been committed to international development work, beginning with the early work of the Scottish missionaries to the more recent contribution of a range of international development organisations, and Scottish public bodies involved in health and education. Scotland currently makes a distinctive contribution to international development with its work with developing countries, recognising our global responsibility to work together to achieve the Millennium Development Goals ( MDGs). In financial year 2009/10 the Scottish Government has allocated £6 million to its international development fund; this will rise to £9 million in 2010/11. This work sits alongside UK activities, and efforts by the wider international community, to alleviate the effects of poverty.

European Union

2.9. In recent decades Scotland has benefited from free trade arrangements established under the European Free Trade Association, the European Union and the European Economic Area. The EU offers a wealth of opportunities for Scotland, allowing the Scottish Government to promote sustainable economic growth at home, by Scottish companies having full and non discriminatory access to the largest single market in the world, and by sharing Scotland's experience and expertise in diverse areas of public policy, investment and administration.

2.10. Currently, as a 'region' of a Member State, Scotland has an active role within the EU, but this is only a subordinate one. We are subject to the EU's laws and regulations, involved in its policy making processes and accountable for transposing EU law into our own national law within devolved policy areas. Thus, while Member State participation in EU decision making processes is considered to be an aspect of foreign affairs, and consequently is reserved by the Scotland Act 1998, key aspects of the UK's implementation of EU obligations falls to the Scottish Government (and to the devolved administrations in Cardiff and Belfast). Distinctive arrangements are therefore in place to seek to incorporate the interests of Scotland, Wales and Northern Ireland.

2.11. A brief consideration of how or whether Scotland is currently represented on key institutions is set out below.

2.12. The Council of the EU. At the Council of the EU, Ministers from the national governments of all the EU Member States meet to make decisions that will affect them collectively. In most subject areas, the Council of Ministers shares responsibility with the European Parliament for making laws and taking policy decisions, and it has the main responsibility for the EU's common foreign and security policy.

2.13. Representation in Council enables EU Member States to negotiate directly with other Member States on proposals for EU laws and initiatives. Scotland is represented at Council meetings by the UK Government; when Scottish Ministers attend Council meetings it is part of the wider UK delegation, not in their own right. The EU Concordats envisage that Ministers and officials of the devolved administrations will be fully involved in discussions within the UK Government about the formulation of the UK's policy position on all issues which touch on devolved responsibilities. This should mean that Scottish interests are at least fully considered when the UK line is being finalised, even if those views and priorities can be submerged or diluted by the competing concerns of the other nations in the UK.

2.14. Although Scottish Ministers can ask to attend Council, they can only do so with the permission of the relevant Secretary of State, and if granted permission to speak, must speak to the agreed UK negotiating line. This should in theory be a line that they have contributed to and agreed. However in practice the UK does not always ask for the views of Scotland, Wales or Northern Ireland, still less give those views due weight. Indeed, experience shows that a lead UK Department will rarely pursue a Scottish policy interest if it conflicts with their own dominant objective even if, as with the fishing industry, Scotland has the majority interest.

2.15. Increasingly scene-setting policy debates take place in informal Councils rather than in formal settings in Brussels. Pressures on the Presidency and Council Secretariat of the EU render it nigh on impossible for Scottish Ministers to be represented on these occasions, even if there is goodwill from the UK Government facilitating attendance.

Box 1: Case Study - Informal Ministerial Councils

Although legislative decisions are not taken at informal Ministerial Councils, they can be important fora for political debate in significant policy areas such as agriculture and fisheries, economic and financial affairs, environment and energy and justice and home affairs. In recent years, successive Council presidencies have used them with increasing frequency. The Swedish Presidency for example used its Environment Informal to discuss preparations for the crucial climate change conference in Copenhagen in December 2009. Unlike formal Councils of Ministers where there is a range of items on the agenda requiring discussion and decision, informal Councils often focus on particular issues in a given policy area such as the content of a future EU policy programme, priorities for policy reform, or are used to prepare the EU's policy position in advance of international negotiations. Given the level of focus, informal Councils are therefore a key means of EU engagement.

The current arrangements for seeking the UK's agreement to attend EU meetings as outlined in the current EU devolution concordat makes no distinction between formal and informal Councils. However, recent experience suggests that, almost inevitably, there is little scope for Scottish Government attendance at informal Councils with the UK often citing pressure on spaces. This ignores the Scottish Government's legitimate interest to engage in areas of importance to Scotland. The Scottish Government is therefore missing out on invaluable opportunities to engage with EU counterparts in policy areas of priority. This would not of course be the case if Scotland was an independent EU Member State as its participation in all Councils, formal or informal, would not simply be at the gift of the UK or anyone else for that matter.

2.16. The European Parliament. The European Parliament is a central part of the EU decision making process, because MEPs have increasing ability to influence legislation under the co-decision procedure. This procedure means that the European Parliament and the Council have to agree on proposals in order for them to become law (the effect is similar to the both chambers of bicameral legislature needing to pass legislations before it becomes law e.g. House of Commons and House of Lords; or House of Representatives and US Senate).

2.17. The number of MEPs that a country has depends on its size, and is worked out on a principle where there are proportionally fewer MEPs in larger states such as the UK, than smaller states such as Denmark (known as digressive proportionality). Under current arrangements, as part of the UK, Scotland has 6 MEPs. This is considerably less than Member States of a comparable size to Scotland. For example, Denmark and Finland both have 13 MEPs.

2.18. The European Commission. The European Commission is independent of national governments, and is responsible for upholding the interests of the EU as a whole. It drafts proposals for EU initiatives, and manages the implementation of EU policies and the spending of EU funds.

2.19. While the Scottish Government contributes to formal UK consultation exercises, which follow Commission proposals, Scottish views are not always fully articulated in the final UK response. The Scottish Government also responds independently to proposals that are of particular importance to Scotland, though this response does not carry as much weight as that from a Member State. We have also been able to wield influence through informal events, not least because of international respect for our integrity.

2.20. The Economic and Social Committee. The Economic and Social Committee is a non-political body that represents employers, trade unions, farmers, consumers and other groups that collectively make up "organised civil society." This committee gives the EU's socio-occupational interest groups and others a formal opportunity to express their opinions on EU issues and participate in the Community decision-making process. Scotland currently nominates three members of the Committee. Member States of a comparable size to Scotland, such as Denmark, Ireland and Finland, each nominate 9 members.

2.21. Committee of the Regions. The Committee of the Regions (CoR) is a consultative committee made up of representatives from local and regional authorities in the EU. The Commission and Council are obliged to consult the CoR whenever new proposals are made in areas which have repercussions at regional or local level. This means that proposals on many areas of the EU's activity must be considered by the Committee. Scotland has 4 full members of CoR, and 4 alternative members who can attend if the full members are unable to. Member States of a similar size to Scotland, such as Ireland, Finland and Denmark each have 9 full members and 9 alternative members of the Committee of the Regions.

2.22. In all of the above cases, Scotland has more limited access to, and influence on, decision making than similarly sized European countries. Mechanisms exist for Scottish interests to be fed into the decision making process, directly and via the UK. However these are often lost or diluted during their incorporation into the UK negotiating line, even where Scotland's carry a disproportionate share of the UK's interests.