2. Bilateral Relations
4. Parliamentary Business
Annex A: Concordats
1.1 The UK Government on the one hand and the Scottish Ministers, the Cabinet of the National Assembly for Wales [and the Northern Ireland Executive Committee] ("the devolved administrations") on the other have agreed a Memorandum of Understanding (MoU) setting out the principles that will underlie relations between them. Pursuant to the MoU, this guidance sets down common working arrangements aimed at promoting the efficient administration of Government business within the UK in relation to both devolved and non-devolved matters. 1
1.2 Like all agreements under the MoU, this note is not a binding agreement or contract, and does not give rise to legal obligations. It is intended to guide the work of the UK Government and the devolved administrations, in accordance with the principles set down in the MoU.
1.3 The common working arrangements set down in this guidance have been endorsed by the Official Committee established pursuant to the MoU to shadow the Joint Ministerial Committee. The JMC(O) will keep the arrangements under review. Each of the administrations may propose amendments at any time in the light of experience in their operation.
2. Bilateral Relations
2.1 Good communications between the administrations is essential. If one administration is planning action which impinges on the responsibilities of another, it should give adequate forewarning.
2.2 The principal channel of communication between administrations should be through the bilateral links between the relevant departments of each administration, at official or Ministerial level. Most issues which affect the responsibilities of two or more administrations should be capable of resolution at this level. Working practices between individual departments of the administrations may be set out in concordats, internal guidance and working level documents.
2.3 Concordats are public documents. They are not intended to be legally binding, nor are they exhaustive descriptions of every aspect of bilateral relationships. They are intended as working documents, to guide officials. A note on the nature and purpose of concordats appears at Annex A .
2.4 There will be circumstances when it will be appropriate to undertake activities in co-operation, or, for certain activities to be undertaken by one administration on behalf of another through agency arrangements. Any such agency arrangement may be attached as an annex to the bilateral Concordats between departments.
2.5 Bilateral concordats may also describe working level agreements about the joint commissioning of research and, as appropriate, the sharing of research papers, although in certain cases agency agreements might also be appropriate. The statistics concordat sets out the basis on which statistical information in particular is to be exchanged and used (including requirements for confidentiality), associated costs and expertise are to be shared, and professional standards maintained. Bilateral concordats refer to the provisions of that agreement as appropriate.
2.6 The administrations expect to maintain existing administrative liaison and co-ordination arrangements in the fields of property, information technology, security and related matters. Existing arrangements for cost sharing will continue. Where new demands are made, where the costs to the providers change, or where circumstances have changed, any party may propose changes to the cost sharing arrangements, consistent with the Statement of Funding Policy. 2
2.7 Where disputes arise between administrations, they may be referred to the machinery of the Joint Ministerial Committee (JMC) established pursuant to the MoU with a view to settling the matter in correspondence or through a meeting of that Committee. Each bilateral concordat will include a reference to the process for triggering formal JMC intervention.
3.1 The four administrations are committed to providing a satisfactory level of service and accountability to the public. The following paragraphs set out arrangements for handling correspondence addressed to the UK Government and the devolved administrations, in accordance with these principles. More detailed guidance for officials on the handling of correspondence under devolution has been prepared by the UK Government and the devolved administrations.
Freedom of Information
3.2 As was the case prior to devolution officials will need to handle all correspondence in accordance with the Code of Practice on Access to Government Information (or similar devolved regimes 3 ) When in force, decisions on disclosure will need to be taken in accordance with the relevant legislation on Freedom of Information. Under any future FOI legislation officials dealing with correspondence will need to consider their replies in the light of the relevant FOI legislation and any Codes of Practice which are issued. It may be that the arrangements for handling correspondence will need to be revised as a result.
3.3 The responsible department of each administration will answer letters, etc. in accordance with its own published standards for answering correspondence, including any Welsh language scheme where appropriate. If a letter needs to be transferred to another administration, this will be done promptly. (N.B. The decision to transfer a letter should be based on its contents and not on the fact that the writer's address happens to be in a particular area).
3.4 Correspondence should only be copied or transferred to another administration in accordance with these arrangements where to do so would not breach the confidentiality of an individual correspondent's affairs. In cases of doubt, correspondents should be invited to pursue the matter direct with the relevant administration.
Correspondence on non-devolved matters
3.5 Correspondence addressed to a devolved administration which relates solely to a non-devolved matter will normally be transferred to the UK Government for substantive reply. The department transferring any letter will inform the correspondent that this is being done and why. At the same time, it will furnish the correspondent and the UK Government with any information which it is required to supply in accordance with paragraph 3.2.
3.6 If the correspondent has specifically asked what action a devolved administration has taken - for example, what representations it has made to the UK Government - it would also be appropriate for the devolved administration to answer the correspondent on that basis. If the letter is then transferred to the UK Government for further action, the devolved administration will also copy its reply together with the original correspondence.
Correspondence on devolved matters
3.7 Correspondence addressed to the UK Government dealing solely with a devolved matter will normally be transferred to the appropriate devolved administration for substantive reply. At the same time, the UK Government will inform the correspondent and the devolved administration whether it holds any of the information requested and supply such information as may be required in accordance with paragraph 3.2.
3.8 When an administration receives correspondence which relates to both devolved and non-devolved matters, it will normally reply only to the points which fall within its responsibilities and provide the relevant information which it holds. It will in the meantime copy the letter to the administration responsible for the other issues for further action. Each administration will send the other a copy of its reply.
3.9 In some cases, it may be more appropriate for the two administrations to agree a single joint reply to be issued by one of the administrations. This applies in particular in relation to those matters where the devolved administration is responsible for implementation of the UK Government's policies in Scotland, Wales or Northern Ireland.
4. Parliamentary business
4.1 The UK Government and devolved administrations have agreed to co-operate to enable each party to meet its obligations to its respective Parliament or Assembly, having regard to the principles set out in the MoU.
4.2 It is for the authorities of each legislature to decide whether or not the subject of a Question or a proposed debate falls within the remit of that legislature, and how to treat Questions and proposed subjects for debate which concern both devolved and non-devolved matters, such as EU business on a devolved matter.
Debates and inquiries
4.3 Where the UK Parliament is to debate or consider issues which touch on devolved matters, the relevant devolved administration will provide such information to the UK Government as appears appropriate and necessary to enable the UK Government to meet its responsibilities to Parliament. If the UK Parliament approaches a devolved administration direct with a view to the provision of information or the submission of evidence, the devolved administration undertakes to keep the UK Government informed of any such approaches and about the submission of evidence.
4.4 Where a devolved legislature is to debate or consider issues which touch on non-devolved matters, or is seeking information in respect of the activities of the UK Government to inform its own deliberations, the UK Government will provide such information to the devolved administrations as appears appropriate and necessary to enable the devolved executive to meet its responsibilities to the devolved legislature. If any devolved legislature approaches the UK Government direct with a view to the provision of information or the submission of evidence, the UK Government undertakes to keep the relevant devolved administration informed of any such approaches and about the submission of evidence.
4.5. Each administration will aim to provide any information that may be reasonably requested by another administration to enable it to carry out its responsibilities effectively, provided that (a) this is practicable, (b) it would not involve disproportionate cost, and (c) the information is available in reasonably accessible form. The administrations will in all circumstances comply with the relevant FOI legislation.
4.6 As a general principle, the UK Government will normally answer UK Parliamentary Questions purely on devolved matters of fact by making it clear that such questions should be addressed to the relevant devolved administration, in accordance with Madam Speaker's Statement on 12 July (OJ cols 21-22). Similarly, the devolved administrations will make it clear in answer to parliamentary or assembly questions in relation to non-devolved matters of fact that such questions should be addressed to the UK Government unless the administration concerned has executive responsibility in the relevant area.
4.7 The form of the question may make this difficult: for example, if a Minister is asked what representations he has made on an issue to his counterpart in one of the other administrations. In some cases, a clear distinction between respective responsibilities may not be possible. This applies for example in relation to those matters which are the subject of executive devolution in Scotland, where policy responsibility remains with the UK Government while the devolved administration is responsible for implementation. In such cases consultation between administrations will be necessary to determine handling. However, answers should, whenever possible, adhere to these principles.
4.8 In all cases a copy of the question and answer should be sent promptly for information to the appropriate administration.
Other parliamentary business
4.9 The same principles as set out above apply to direct representations, requests for meetings, etc. between Ministers (or their counterparts) and members of legislatures.
5.1 In accordance with the general principles set out in the MoU, the administrations will normally consult each other from an early stage on the development of relevant legislative proposals, in confidence where necessary.
5.2 The UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government.
5.3 The UK Government will also alert the relevant devolved administration(s) to proposals for UK legislation on non-devolved matters in policy fields which have been devolved as regards Scotland, Wales or Northern Ireland, as the case may be. Each devolved administration will alert the UK Government to all legislative proposals; and the other administrations to legislative proposals in policy fields which fall within their competence.
5.4 When primary legislation is prepared by Whitehall Departments, consideration will always be given to the arrangements for Wales. It is therefore particularly important for lawyers and policy makers in those Departments to consult colleagues in the office of the Secretary of State for Wales and those advising the National Assembly for Wales about all relevant proposals for primary legislation for which there is UK Government collective consideration of the policy content unless there are considerations relating to the legislation which make such consultation inappropriate. In particular, the Assembly should be consulted on all Bills which confer new functions on it or alter its existing functions. This will allow Parliamentary Counsel to be instructed on any Welsh aspects.
5.5 The devolution legislation contains various powers for the Secretary of State to intervene in devolved matters. It also contains powers for the Law Officers to refer questions of vires to the Judicial Committee of the Privy Council. Paragraph 26 of the MoU makes clear that the UK Government sees these powers as a matter of last resort. The UK Government and the administration concerned will therefore aim to resolve any difficulties through discussion so as to avoid any action or omission by the devolved administration having an adverse impact on non-devolved matters. If formal intervention should become necessary, the UK Government will whenever practicable inform the devolved administration of its intentions in sufficient time to enable that administration to make any representations it wishes, or take any remedial action.
5.6 Legislative proposals will normally have been subject to advance notification and consultation, in accordance with paragraph 5.1. However, in order to enable UK Departments and the UK Law Officers to decide whether they need to activate the relevant procedures, the devolved administrations will notify legislative measures to the relevant UK Departments and Law Officers both when they are published and when they are adopted, whether or not there has been consultation at an earlier stage.
5.7 The Scottish Executive will send a copy of every Bill when it is first published to the office of the Advocate General, to the office of the Secretary of State for Scotland, and to the Department(s) in Whitehall which have a policy interest. A further copy will be sent immediately on the passing of a Bill. If a Bill is reconsidered by the Parliament after it has been passed, a copy of the amended Bill will be sent immediately to the same Departments.
5.8 In the same way, the Scottish Executive will also send a copy of any draft secondary legislation that is affirmative in nature, or on which it proposes to consult interested parties, when it is first published to the office of the Advocate General, to the office of the Secretary of State for Scotland, and to the Department(s) in Whitehall which have a policy interest.
5.9 The Scottish Executive will send a copy of all primary legislation when it has received Royal Assent and secondary legislation when it is made to the office of the Advocate General, to the office of the Secretary of State for Scotland and to the Department(s) in Whitehall which have a policy interest.
5.10 The Assembly will send a copy of each draft instrument containing any general subordinate legislation both to the office of the Secretary of State for Wales and to the Department(s) in Whitehall which have a policy interest at the same time as it is sent to the Legislation Committee of the Assembly. Any report of that Committee will also be sent immediately to the same Departments.
5.11 The Assembly will send a copy of all secondary legislation when it is made both to the office of the Secretary of State for Wales and to the Department(s) in Whitehall which have a policy interest.
5.12 In some cases, Bills require consent from the Secretary of State before they may be considered or proceeded with by the Assembly. The Secretary of State also has certain powers to revoke secondary legislation. This makes it particularly desirable that, so far as possible, questions which might engage these powers are resolved before the introduction of a Bill or the making of subordinate legislation. These consent requirements are additional to the power of intervention by the Secretary of State and the vires control mechanism described in paragraph 5.5 above.
5.13 When a draft Bill is introduced in the Assembly, the Northern Ireland Executive Committee will send a copy to the Northern Ireland Office and to the Department(s) in Whitehall which have a policy interest, even if the draft has already been sent to the Secretary of State at an earlier stage. If a Bill is reconsidered by the Assembly after it has been passed, a copy of the amended Bill will be sent immediately to the same Departments.
5.14 The Northern Ireland Executive Committee will send a copy of all primary and secondary legislation when it is made both to the Northern Ireland Office and to the Department(s) in Whitehall which have a policy interest, even if they have already received a copy in draft.]
The three Acts of Parliament dealing with devolution - the Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland Act 1998 - define the respective functions of the UK Government and the devolved administrations in different ways. Like the Memorandum of Understanding, this note uses the terms 'devolved' and 'non-devolved'. 'Devolved' means in the Scottish context any function not reserved to the UK Government or Parliament under Schedule 5 of the Scotland Act or transferred to the Scottish Ministers under other legislation; in the Welsh context, any function transferred or conferred on the Assembly by Order or by primary legislation; and in the Northern Ireland context, any function which is not an excepted or reserved matter under Schedules 2 and 3 of the Northern Ireland Act. 'Non-devolved' means anything else.
ANNEX A: CONCORDATS
1. The aim and purpose of concordats is to preserve existing good working relationships and ensure that the business of government is conducted smoothly and efficiently after devolution takes effect. Their purpose is not to create legal obligations or restrictions on any party; rather, they will set the ground rules for administrative co-operation and exchange of information.
2. Concordats are not necessarily the only way to regulate these relationships in future. Other, less formal, arrangements will be appropriate in many cases, and in others there will be no need for any standing arrangements at all.
3. The need for a concordat should arise from the particular circumstances of the policy area, which will also largely drive the nature of any agreement. In general, concordats will set out the principles on which working relationships will be based rather than prescribe the details of what those relationships should be. They will set down common processes and the main features of good working relationships, rather than specify substantive outcomes. They will need to meet two key aims:
- to provide the Department of the UK Government and the devolved administration with the confidence that working relationships will be conducted properly and in accordance with agreed processes such as adequate consultation.
- to avoid constraining the devolved administrations or Whitehall Departments in their actions within their fields of competence.
4. A number of topics are likely to be common to many concordats. This list is not prescriptive and it will ultimately be a matter for the UK Government and the devolved administrations to decide what should be covered by the agreements. The likely common topics include:
- consultation arrangements in relation to proposals for legislation and executive action, including advance notification: the aim on both sides should so far as possible be "no surprises";
- exchange of information, including policy papers, analysis and statistics;
- joint working, including participation in working groups, official committees and so on;
- confidentiality within these arrangements;
- arrangements for liaison on EU and international matters;
- any financial arrangements;
- access to research, research budgets and specialist advice;
- liaison between chief professional officers;
- consultation about appointments including those to UK/GB public bodies; the exercise of Ministerial functions relating to such bodies, such as giving directions or approving corporate plans; and the relevant mechanisms of accountability and financial arrangements (it may be necessary to have a separate memorandum of understanding for each body);
- operation of agency arrangements whereby matters are administered by the UK Government on behalf of a devolved administration on an agency basis or vice versa.
- arrangements for resolving disagreements about any matters related to the concordat;
- arrangements for renewal and review of the agreement.
5. Bilateral concordats should set out procedures for the review of their terms and conditions and for consideration of the functioning of bilateral relations generally. The form of the review will vary according to business needs, but as a minimum it is expected that the parties to the concordat should review the concordat a year after it has been signed.