3 Commission on Scottish Devolution
3.1. The Commission on Scottish Devolution 3 explicitly did not consider broader foreign affairs to be within its remit. As such the report says little about much of the subject matter of this paper and instead focuses on how the Scottish and UK Governments could work together on an essentially unchanged legal basis.
3.2. In relation to EU matters, the Commission recognised 4 that the UK Government has a responsibility to ensure that the interests of the devolved administrations are fully represented on EU matters, and proposed that both the UK and Scottish Governments should be more proactive in engaging with each other where EU legislation or policy impinges on devolved responsibilities. There is already proactive engagement in some areas. For example, in recent discussions with the UK Department of Health about the Cross-Border Healthcare Directive, the Scottish Government emphasised the need for the directive to recognise the potential for different entitlements within a Member State. The UK Government has accepted that this is an important issue for all the administrations that make up the UK, and has included it as a matter for negotiation with the other Member States in agreeing the terms of the draft directive. This level of engagement between Whitehall and devolved administrations is welcome, and demonstrates that where there is willingness the spirit of the Memorandum of Understanding and Concordats can be delivered. The Scottish Government has therefore welcomed this recommendation from the Commission, and is ready to play its part in improving mechanisms and the flow of information so that good practice is replicated elsewhere.
3.3. The Commission also argued that there should be a presumption that when Scottish Ministers wish to attend Council of Ministers meetings their requests should be agreed, and when they ask to speak that the request should be granted whenever practical. These are small steps but since they do go somewhat further, in emphasis if not in absolute rights, than the current Memorandum of Understanding, the recommendations are welcomed by the Scottish Government as representing movements in the right direction.
3.4. It is sometimes argued that Scotland benefits from the weight of UK votes in the Council of Ministers.
3.5. However if the Commission recommendation that the UK Government should more proactively engage with the Scottish Government were implemented by the UK Government, the arrangement would continue to rely entirely on their political goodwill with no external check or remedy. Whether through omission or commission, the experience of the last 10 years suggests that mechanisms which rely entirely on political or administrative goodwill will work imperfectly, and of course will only function as far as the limits set for them. Furthermore, the analysis that Scotland is better represented by one of the largest Member States does not take into account the occasions when the UK votes against the clear Scottish interest (nor does it recognise that with independence a combined Scottish and rest of UK ( rUK) vote would have even greater weight, so when the two countries agree, each would be part of an even bigger voting bloc).
3.6. So although a renewed emphasis on early and proactive engagement by UK Government departments with the Scottish Government when they are developing EU policies could help ensure that the Scottish Government's position was better incorporated into the final UK-wide position, it seems more likely that UK departments will continue, in practice, to be reluctant to involve the Scottish Government early in the process, or through oversight will fail to do so.
3.7. This situation often arises when discussion and negotiation is needed between Whitehall Departments, for instance between a policy Department and the Treasury, or where the policy interest is shared between 2 or more Departments. The UK Government rarely includes Scotland, Wales or Northern Ireland at this stage of internal discussion, despite commitments in the MoU. This means that decisions are presented to the devolved administrations as a fait accompli, since to take on board meaningful contributions from the devolved administrations at that stage would mean reopening Whitehall negotiations.
Box 2: Case Study - Foot and Mouth Disease
During the Foot and Mouth disease outbreak in 2007, Scottish livestock keepers began to suffer significant economic hardship as a result of restrictions on animal movements. There were also major animal welfare concerns, given the number of animals that had to be moved over a much shorter timescale than normal, and political and welfare issues which would arise if they were not moved.
When the animal movement restrictions were lifted, the Scottish Government decided that a temporary extension of permitted drivers' hours was needed to relieve pressure. This additional time was needed to move animals in lorries whilst subject to the additional disinfection requirements, but required a relaxation of the drivers' hours regulations. The Scottish Government took the case to the Department for Transport as the Member State authority in this area, who had responsibility for deciding whether to lay legislation in Westminster to allow this, and for informing the European Commission if they did. However, the UK Government did not properly understand the hardships facing Scottish hill farmers. After one month, the Department of Transport rejected the Scottish Government's case and refused to grant any extension to the permitted drivers' hours. It was only when a similar need emerged in England that the Department of Transport changed its position.
If the recommendations of the Calman Commission were successfully implemented, they might make a recurrence of this type of incident less likely. However, the Scottish Government is concerned that they are not likely to be implemented successfully. Only an independent Scotland would have the authority to make this type of decision for itself with responsibility for all transport sectors or modes which would have been affected by this change. Scottish Ministers would have to determine how to balance the urgent animal welfare needs with legitimate road safety concerns.
3.8. Even when internal negotiation has not been necessary within Whitehall, UK departments currently undertake "double hat" responsibilities, by representing English policy views whilst also co-ordinating and delivering the UK negotiating line. Situations also arise where a Whitehall department is responsible for both negotiating grants from the EU and for representing England in the negotiations about the distribution of grants within the UK, e.g. in relation to structural funds Revised processes are needed to ensure that the finalised UK Government negotiating position fairly reflects the contributions and interests of the four countries within the UK. For instance, there are examples of occasions in the past when a UK Government Minister has chaired such meetings, taking a UK wide view, whilst another UK Government Minister represented English interests, with Scottish, Welsh and Northern Irish Ministers also attending. 5
3.9. The development of an effective dispute resolution mechanism would further strengthen the effectiveness of the devolution settlement. The Memorandum of Understanding describes the JMC as having a role in the resolution of disputes about the involvement of devolved administrations in the EU matters. The JMC has not generally operated in this way but an effective and transparent mechanism which allowed devolved administrations to raise concerns when they did not think their views had been properly taken into account would reassure the public that a fair process existed for the creation of a UK position.
3.10. Just as there should be a renewed emphasis on early and proactive engagement by UK Government departments with the Scottish Government when they are developing policies with an EU dimension, UK departments need to involve the Scottish Government early in the process of drawing up international negotiating positions. Otherwise the risk is that international policy is driven by English concerns without the views of the devolved administrations fully understood.
3.11. The report does give comparatively brief consideration to immigration, though within the bounds of the current reservation. This recognises that Scotland has its own distinct skills and demographic needs and that a 'one size fits all' immigration system does not work. Within the existing reservations it is important that the Scottish Government continues to explore with the Home Office flexibilities in the Points Based System to help achieve the aims of population growth to support short-term and long-term economic growth.