Scottish Government

Introduction

1. This concordat is made between the Office of the Deputy Prime Minister (ODPM) and the Scottish Executive. It is intended to provide the framework to guide the future working relationship between the Deputy Prime Minister , other ODPM Ministers and ODPM officials (together referred to in this document as "ODPM") and Scottish Ministers and their officials (together referred to in this document as "the Executive"). The terms "ODPM" and "the Executive" also include their respective Executive Agencies where appropriate. The objective of the concordat is to ensure that the roles and responsibilities of ODPM and the Executive are effectively translated into practical working arrangements between the two organisations. The aim is to promote the establishment of close and harmonious working relationships and good communications at all levels between the two organisations, and in particular to foster constructive co-operation.

2. In support of these objectives, ODPM and the Executive have jointly established a forum of senior officials intended to help promote good relationships between the two organisations. The forum will focus on administrative and cross-cutting issues rather than specific policy matters or disputes, which will be dealt with under the procedures indicated below. The forum will monitor the effectiveness of this concordat in delivering the aims described above, and will consider the scope for improvements, taking account of the future developing needs of the two organisations. This will include oversight of the formal review process for the concordat referred to in paragraph 37 below.

Nature of Concordat

3. This concordat has been drawn up in accordance with the principles outlined in the Memorandum of Understanding (MOU) which sets out the understanding of the UK Government and the devolved administrations of Scotland, Wales and Northern Ireland of the principles that underlie relations between them. The MOU is supplemented by an agreement on the Joint Ministerial Committee (JMC) and by guidance on common working practices. There are also over-arching concordats setting out the framework for co-operation on EU policy issues, international matters, statistics, and financial assistance to industry. Where those matters are concerned, reference should first be made to those over-arching concordats. However, where specific arrangements on cost sharing have been agreed between ODPM and the Executive, those arrangements apply rather than the general cost-sharing provisions of the statistics concordat.

4. This concordat is a voluntary arrangement between ODPM and the Executive. It is not a binding agreement or contract and so does not create any legally enforceable rights, obligations, or restrictions. It is intended to be binding in honour only. The Scotland Act 1998 provides for statutory consultation by the UK Government with the Scottish Administration in certain cases; this concordat does not create any equivalent or other right to be consulted or prevent consultation beyond that required by statute. Any failure to follow the terms of the concordat is not to be taken as invalidating decisions taken by ODPM or the Executive.

5. The main body of this concordat specifies general working arrangements between ODPM and the Executive. There is also an annex containing additional arrangements which relate to Environmental Impact Assessments. For other subject areas the arrangements provided for in the main body of this concordat, taken together with the MOU, the JMC agreement, the over-arching concordats, and guidance on common working practices will be followed.

Interpretation

6. As this concordat indicates, ODPM and the Executive will exchange information and inform or consult each other about a wide range of issues in a wide range of situations. The concordat is not, however, intended to be an exhaustive description of every aspect of the relationship between the organisations, or to preclude communication between them about other issues or in other situations.

7. It is not generally either possible or desirable for the concordat to prescribe in detail the circumstances which will trigger a need to invoke the arrangements set out in this concordat, or the exact form of communication or the timescale involved. Where specific arrangements are necessary on particular topics they are outlined in this concordat and its annexes. ODPM and the Executive will use their judgement , taking into account the terms of this concordat, in determining for any given issue the procedures (including the level of detail and, where necessary, the period of notice) that appear reasonable and appropriate in the circumstances, in accordance with the principle that if either is planning action which impinges on the responsibilities of the other, it should give adequate forewarning.

8 This concordat is framed in terms of the interface between ODPM and the Executive; it is not intended to imply that communications on issues covered by the concordat should not, where appropriate, also involve other UK Departments (including the Scotland Office) or devolved administrations; indeed that may be the most effective way of conducting some business.

Confidentiality

9. ODPM and the Executive wish to ensure that the information each supplies to the other is subject to appropriate safeguards, in accordance with the principles set out in the MOU. These arrangements rely for their effectiveness on mutual respect for the confidentiality and sensitivity of information exchanged. Therefore, ODPM and the Executive will not disclose unpublished information to third parties without the permission of the administration which provided the information, subject to the requirements of the law and other obligations.

10. In considering the case for disclosure, the provisions of the UK Freedom of Information Act 2000 and the Freedom of Information (Scotland) Act 2002 will be taken into account by ODPM and the Executive respectively. Until such legislation comes into effect, the Open Government Code of Practice on Access to Government Information and the equivalent rules that apply to the Executive (the Code of Practice on Access to Scottish Executive Information) will govern disclosure of information.

Statutory Framework

11. The Scotland Act 1998 provides for the transfer to the Scottish Ministers of Ministerial functions relating to devolved matters in or as regards Scotland, subject to the constraints set out in the Act. Ministerial functions relating to reserved matters in Scotland continue to be exercised by the appropriate Secretary of State. The Act provides, however, that Ministerial functions relating to reserved matters may be "executively devolved" to the Scottish Ministers and that specified functions relating to devolved matters may be transferred to the Secretary of State. Functions in these categories may require to be exercised after consultation with, or with the agreement of, or with the consent of, the Secretary of State or the Scottish Ministers. The Act also makes provision for certain functions to be exercised concurrently in Scotland by the Secretary of State and the Scottish Ministers; for certain categories of non-statutory Ministerial functions relating to the establishment, maintenance or abolition of public authorities to be exercised jointly; and for functions of either the Secretary of State or the Scottish Ministers to be exercised by the other on an Agency basis.

Practical Arrangements

12. ODPM and the Executive recognise that good communications systems are essential in order to assist the process of policy formation and decision-making in each administration and to meet any consultation or other requirements connected with the exercise of a function. ODPM and the Executive therefore undertake to keep each other informed, where relevant, of developments in policy and practice in respect of matters within or affecting their respective responsibilities, including proposals for legislation and other initiatives, and other issues which may be relevant to each other. They also recognise that there will be mutual benefit from the exchange , where appropriate, of information on scientific, technical and policy matters , in accordance with the principles set out in the MOU. Specific arrangements for devolved matters, reserved matters, and the interface between the two, are set out below.

Devolved Matters

13. In relation to devolved matters ODPM and the Executive will:

• share information, analysis and research, where such arrangements would be of mutual benefit;
• inform each other of any relevant information which comes to their attention which may require action by or have resource consequences for the other party;
• seek to involve each other, as and when appropriate, in policy formation on topics where there is a reasonable expectation that a policy initiative might affect, the other's responsibilities , or be used or adapted by the other (but an initiative by one administration does not imply that the other will follow suit);
• inform each other at the earliest practicable stage of any proposal to change primary or secondary legislation, and to highlight the potential implications for the other's responsibilities; and
• inform each other at the earliest practicable stage of substantive new policy announcements which may be relevant to the other's responsibilities.

Interface between Devolved & Reserved Matters

14. There are some areas where there is a close interface between devolved and reserved matters. ODPM and the Executive will maintain close contact on issues where such an interface exists. In such cases:

• the Executive will consult ODPM at an early stage when there is a possibility that a proposed policy or decision (eg on planning guidance) may relate to reserved matters (eg UK or GB-wide strategies on reserved matters) for which ODPM is responsible; this includes any possibility that proposed Scottish legislation (including in the area of Scots private law) may affect reserved matters, particularly if this may involve consequential changes in legislation on such matters; ODPM will similarly consult the Executive at an early stage where a proposed policy or decision on reserved matters may affect devolved matters;
• in the case of planning or analogous cases which are to come before Ministers of the Crown or Scottish Ministers for decision and where there is an interface between reserved and devolved matters, the Executive and ODPM will inform each other at an early stage; such notification will be in sufficient time to enable the recipient to submit representations, in the same way as other interested parties, for consideration before a decision is reached;
• each party will ensure that the other is kept abreast of developments in policy, practice and legislation, including discussions with third parties, in areas where there is, or could be, an interface;
• ODPM and the Executive will co-ordinate activities where appropriate.

15. ODPM may offer advice to the Executive on the effect on reserved matters of a proposal by the Executive, and the Executive may similarly offer advice to ODPM on the effect on devolved matters of a proposal by ODPM. If such advice is to be rejected, in whole or in part, the administration taking action will inform the other, wherever possible before the proposal is presented in public.

Reserved Matters

16. In relation to reserved matters:

• ODPM will inform the Executive, as early as possible, of proposals which may be relevant to the Executive, and wherever possible before any public announcement is made;
• ODPM and the Executive will inform each other of any relevant information which comes to its attention which may require action by the other party.

Joint and Concurrent Powers

17. Joint powers are those where it is a legal requirement for Scottish Ministers and UK Ministers to act in agreement and together. Alternatively, there may be a requirement for UK Ministers to act only after consultation with Scottish Ministers (or vice versa). Concurrent powers are those which either UK or Scottish Ministers or both will be able to exercise in Scotland. In such cases, the provisions contained in paragraphs 14 and 15 above will apply, subject to any necessary modifications.

Production of Guidance

18. Where the relevant legislation applying in England and in Scotland is substantively the same, ODPM and the Executive will consider the scope for co-ordinating the preparation and cross-checking of their respective codes of practice and other published guidance, with the aim of ensuring compatibility and consistency where appropriate. They will also consider whether to issue their respective guidance as part of a joint package. The aim will be to ensure clarity and to avoid confusion for those to whom the guidance is addressed.

Publicity and Publications

19. The Executive will, where appropriate, inform ODPM, in advance, of public statements which can be prepared well in advance (eg consultation documents, Press Notices, publication of research findings and reports) on devolved matters which are the responsibility of ODPM in other parts of the UK or which impact on reserved matters. ODPM will, where appropriate, inform the Executive, in advance, of corresponding public statements which can be prepared well in advance on ODPM responsibilities which are devolved matters in Scotland or impact on such matters. In preparing publicity campaigns, ODPM and the Executive will consider in advance whether co-ordinated campaigns would be mutually beneficial; and co-operate on delivery where appropriate.

Dispute Resolution

20. The vast majority of matters should be capable of being handled bilaterally between ODPM and the Executive at official or Ministerial level. Where, exceptionally, an issue cannot be resolved bilaterally, or through the good offices of the Secretary of State for Scotland, it may be referred, in accordance with the MOU and JMC agreement, to the Joint Ministerial Committee Secretariat. Whilst such discussions are under way, ODPM and the Executive will continue to be able to act in areas within their respective competence.

21. It is recognised that the above mechanisms will not be appropriate in some, perhaps exceptional, cases which involve third parties, for example where commercially confidential and market sensitive information is involved. In these instances arrangements will need to follow any specific legal requirements.

General Administration

22. The Executive and ODPM will consult each other where appropriate on correspondence and Parliamentary business, and public statements and announcements, in accordance with the arrangements set out in the MOU and supporting guidance material.

Cross-Border Public Authorities

23. A number of public bodies have functions that relate to devolved matters in Scotland as well as other functions. The Scotland Act 1998 includes provisions which allow appropriate arrangements to be made for the accountability and control of such bodies. They may be specified as "cross-border public authorities" in an order made under section 88 of that Act. This requires the Secretary of State to consult the Scottish Ministers before making appointments to the body, or exercising any other function in relation to it that otherwise affects devolved matters. It also has the effect that such bodies continue to be funded from existing sources rather than from the Scottish Consolidated Fund and that any reports relating to them that are to be laid at Westminster should also be laid before the Scottish Parliament.

24. Where appropriate, these arrangements may be modified, for example, to enable certain functions to be exercised by the Scottish Ministers, or for funding to be payable out of the Scottish Consolidated Fund, through further orders made under section 89 of the Scotland Act 1998.

25. Annex 2 of the concordat contains a list of ODPM's bodies specified under section 88 of the Scotland Act 1998.

Jointly Established Bodies

26. Section 56(4) of the Scotland Act 1998 requires the Secretary of State and Scottish Ministers to act jointly in establishing, modifying or maintaining certain non-statutory bodies which have functions that relate to devolved matters as well as to other matters. ODPM and the Executive will consult each other as necessary on the administration of such bodies, including their terms of reference and funding.

Appointments

27. Appointments to cross border public authorities will be made in accordance with section 88 and section 89 of the Scotland Act 1998, as appropriate. ODPM and the Executive will consult each other as necessary on appointments to jointly established bodies, with a view to making appointments jointly; they may for particular jointly established bodies agree that it would be appropriate to allocate responsibilities between them in selecting candidates for joint appointment. ODPM will, where appropriate, consult the Executive about appointments to other public bodies with a UK or GB remit.

Joint Working

28. ODPM and the Executive may set up joint working groups or committees where appropriate. ODPM will normally, where circumstances permit and this is appropriate, invite the Executive to nominate members of committees which consider for England, matters that are devolved in Scotland, or matters which, though reserved, may affect Scotland, where this would be of mutual benefit.

Analysis, Statistics, Monitoring and Research

29. ODPM and the Executive will consult each other regularly about matters of mutual interest on analysis, statistics, monitoring and research, including proposals for and results of research programmes. ODPM and the Executive will, as and where appropriate, co-operate with each other, to the extent that available resources permit, in the provision of data and information needed to fulfil their respective responsibilities. The over-arching concordat on statistics provides general guidance on that issue, and should be read in conjunction with this paragraph, subject to any specific arrangements on cost-sharing referred to in paragraph 3 of this concordat.

Regulatory Impact Assessments

30. Where domestic legislation, proposals for EC Directives, other European legislation and other proposed international obligations have an impact in relation to Scotland on the costs of businesses, charities or voluntary bodies, a regulatory impact assessment will need to be prepared by ODPM or, in the case of legislation in the Scottish Parliament, by the Executive. ODPM and the Executive will discuss the most appropriate means in each case for obtaining the information necessary for each of them to fulfil their respective responsibilities, and will provide advice and support to the other as appropriate. ODPM and the Executive will also co-operate where either of them decides to carry out a regulatory impact assessment for certain proposals other then by reason of an anticipated impact on costs.

EU and International Matters

General

31. The over-arching concordats on EU and international matters provide general guidance on how these issues should be handled and should be read in conjunction with the following paragraphs.

EU and International Obligations

32. The UK Government will continue to play the leading role in international and EU negotiations. Any legally binding target or undertaking set in this context for the UK as a whole will require a UK-wide response to ensure that the UK can meet it. Similar considerations apply to obligations arising under informal instruments, as defined in the international concordat. Some of the policies needed to meet EU and international obligations may be the responsibility of the Scottish Ministers, others will be reserved to the UK Government. The Executive will therefore have an important contribution to make in developing and delivering new programmes to meet EU and international obligations. Regular dialogue and close co-operation between ODPM and the Executive will therefore be essential.

33. The Executive will co-operate fully with the monitoring and reporting process for EU and international obligations, providing details of, and relevant data on, the results of monitoring, assessment and initiatives carried out within Scotland. It will also participate fully in any EU or international monitoring and review of programme measures taken across the UK which together form the UK's response to such obligations.

34. For quantitative obligations the Scotland Act 1998 includes powers that could be used, if needed, to enable the allocation of a share of such obligations to Scottish Ministers. The EU concordat sets out the general approach to be taken in such cases.

35. Where an EU or international obligation is framed in quantitative terms, ODPM and the Executive will discuss the extent to which each will contribute to the UK's efforts to meet the obligation, based on their respective scope for action within reserved and devolved competences and taking account of all relevant circumstances. Such discussions may also where necessary cover the collection of information to assist in determining the appropriate contributions, and the methodology to be used in monitoring performance.

Expert Advice

36. The Executive will where practicable make available to ODPM, in support of the UK's position at EU and international meetings, expert advice as requested. This will include the reasonable provision, at ODPM's request, of qualified personnel to form part of the UK's delegation. (This arrangement is in addition to the provisions of the EU concordat covering attendance by representatives of the Executive at EU and international meetings.)

Review and Renewal of Concordat

37. It will be open to ODPM or the Executive to propose alterations to this concordat at any time to reflect changes in policy or to reflect the evolution of administrative conventions of co-operation and joint working between the UK Government and the Executive. Annexes may be added, removed or amended separately from the main section, as and when the need arises, by agreement between ODPM and the Executive. In any event, this concordat will be reviewed at three yearly intervals.