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Chamber and committees

Meeting of the Parliament

Meeting date: Thursday, December 8, 2016

Agenda: General Question Time, First Minister’s Question Time, Doon Valley Boxing Club, Disability Delivery Plan, Intergovernmental Relations, Business Motion, Decision Time


Intergovernmental Relations

The Deputy Presiding Officer (Linda Fabiani)

The next item of business is a debate on motion S5M-02937, in the name of Bruce Crawford, on behalf of the Finance and Constitution Committee, on a written agreement between the Scottish Parliament and the Scottish Government.


Bruce Crawford (Stirling) (SNP)

It is a pleasure to open the debate on behalf of the Finance and Constitution Committee. This short debate might not be the most exciting but, nevertheless, it is important.

The origins of the agreement that we are considering lie in the work of the Devolution (Further Powers) Committee, of which I was convener in the previous parliamentary session. The committee undertook a wide range of work on intergovernmental relations—I will say IGR from now on—drawing on the comments in the Smith commission report. It is worth recalling what Lord Smith had to say:

“Throughout the course of the Commission, the issue of weak inter-governmental working was repeatedly raised as a problem. That current situation coupled with what will be a stronger Scottish Parliament and a more complex devolution settlement means the problem needs to be fixed. Both Governments need to work together to create a more productive, robust, visible and transparent relationship.”

The Devolution (Further Powers) Committee’s report made a range of recommendations, including that a new written agreement between the Scottish Parliament and the Scottish Government, on the parliamentary oversight of IGR, should be developed. The committee particularly recommended that the information that is provided by the Scottish Government with regard to IGR

“must enable parliamentary scrutiny of formal, inter-ministerial meetings before and after such meetings.”

In March 2016, the Deputy First Minister, on behalf of the Scottish Government, agreed with the Devolution (Further Powers) Committee the text of the written agreement on IGR. However, because of the proximity of dissolution, there was unfortunately not time for the Parliament as a whole to consider the agreement.

In a nutshell, the written agreement establishes three principles for governing the relationships between Parliament and the Government: transparency, accountability and the respect of confidentiality of discussions between Governments. The agreement particularly requires the Scottish Government to provide the Scottish Parliament with information about the Scottish Government’s participation in formal, ministerial-level intergovernmental meetings, as well as any concordats, agreements and memorandums of understanding that the Scottish Government enters into.

In addition, the agreement requires the Scottish Government to prepare an annual report on IGR and to provide it to the relevant committee of the Parliament. The intention is that the report will summarise the IGR activity that the Scottish Government has undertaken in the previous year and provide information on issues that are likely to emerge in the forthcoming year.

On the extension of the Finance Committee’s remit earlier this year to include constitutional issues, the Finance and Constitution Committee, as the successor committee to the Devolution (Further Powers) Committee in this parliamentary session, considered the agreement and agreed to its contents. However, the scope of the Scottish Government’s IGR activity is clearly wider than the remit of the Finance and Constitution Committee. As a result, the committee agreed to seek a debate, as had been the intention of the Devolution (Further Powers) Committee, whereby the Parliament would be able to consider the agreement, given its broader scope.

The House of Commons Public Administration and Constitutional Affairs Committee this morning published a report, “The Future of the Union, part two: Inter-institutional relations in the UK”—it is hard to get your tongue round that—and commented on the agreement that we are considering. It is interesting to note that that committee welcomed the agreement as a model of good practice, from which other jurisdictions can learn, and recommended that the United Kingdom Government provide the House of Commons and the House of Lords with transparency that is similar to what we intend in Scotland.

That is the background. The intention behind the agreement is to improve the Parliament’s ability to scrutinise the formal intergovernmental relations of the Scottish Government. In the new era of devolution into which we are entering, with an increasing range of powers being shared between the Scottish and UK Governments—as well as the on-going negotiations on Brexit—it is imperative that this Parliament can effectively scrutinise intergovernmental relations.

The agreement is intended to provide a mechanism via which scrutiny of intergovernmental relations can be undertaken more effectively. I would not go as far as to suggest that the agreement is in any way historic. Nevertheless, it is an important statement of intent.

On behalf of the Finance and Constitution Committee, I move,

That the Parliament, in light of the Smith Commission agreement recommendation that inter-governmental arrangements to support the devolution of further powers be “underpinned by much stronger and more transparent parliamentary scrutiny”, agrees to the written agreement with the Scottish Government on inter-governmental relations, which is set out in the Devolution (Further Powers) Committee’s 4th Report, 2016 (Session 4): Annual Report 2015-16 (SP Paper 980), as recommended by the Finance and Constitution Committee.


The Cabinet Secretary for Finance and the Constitution (Derek Mackay)

I am not sure that I can add to the excitement of this debate. I thank the Finance and Constitution Committee for bringing to the Parliament this afternoon a debate on the written agreement on parliamentary oversight of intergovernmental relations.

I thank the convener for his thoughtful opening remarks. Mr Crawford, with his experience of serving as cabinet secretary with responsibility for intergovernmental relations, and as convener of the Devolution (Further Powers) Committee, brings valuable insight to the debate.

Following the Smith commission, the Devolution (Further Powers) Committee’s report, “Changing Relationships: Parliamentary Scrutiny of Intergovernmental Relations”, which I have read with renewed interest since taking on overall portfolio responsibility in the Scottish Government, led directly to the production, in March, of the written agreement that we consider today. The report highlighted the importance of establishing clear and effective processes and formal intergovernmental mechanisms to ensure that parliamentary scrutiny is facilitated.

The written agreement, which was developed jointly between Government and Parliament officials, demonstrates the value of our working together effectively to achieve common goals. It sets a clear framework, which signals the Scottish Government’s willingness to respond to the Scottish Parliament’s valid demands for stronger and more transparent scrutiny of our formal engagement with the UK Government and the other devolved Administrations.

As the Smith commission recognised, the successful devolution of further powers to this Parliament requires the intergovernmental machinery between the Scottish and UK Governments, including the joint ministerial committee structure, to be significantly reformed and scaled up. As members know, at the October meeting of the JMC plenary a new memorandum of understanding was not signed off as planned, given the overriding need to focus on developing a UK approach and objectives for negotiations before article 50 is invoked, in line with Prime Minister Theresa May’s commitment to the First Minister at their meeting in July.

The strength of the current intergovernmental mechanisms will be demonstrated by the effectiveness or otherwise of the JMC on Europe, which has been established to take the work forward. As the Minister for UK Negotiations on Scotland’s Place in Europe said during our evidence session on 16 November:

“We have entered the discussions in good faith ... and we will endeavour to make good progress.”—[Official Report, Finance and Constitution Committee, 16 November 2016; c 40.]

We expect the terms of reference for the JMC(EN) to be honoured and we will see in time whether we believe that that is happening, although progress to date has been slower than we would have wished. Mr Tomkins sometimes says that this Scottish Government does not have full diplomatic capability. That is all the diplomacy that I can bring to that statement on progress on our intergovernmental relations on that subject, which is, of course, being discussed elsewhere.

Will the member take an intervention?

Of course, very briefly.

Very briefly, please.

Adam Tomkins

I am sure that the cabinet secretary is intimately familiar with the report of the House of Commons Public Administration and Constitutional Affairs committee published today, in which evidence from both Leslie Evans, the Permanent Secretary to the Scottish Government and John Swinney, the Deputy First Minister, records that the Scottish Government is positive about the United Kingdom’s intergovernmental machinery.

Derek Mackay

That is very timely, because I was going to go on to welcome some of the commentary around that, but also to reflect on the fact that the UK Government and the Westminster Parliament also need to fully respect the agreements that have been reached in that regard.

As the First Minister has made clear, the Scottish Government recognises that proper parliamentary scrutiny is a key element of the Brexit process. I am aware that the Minister for UK Negotiations on Scotland’s Place in Europe has been keeping relevant committees informed of those meetings. I have been doing the same, as finance minister, to ensure that relevant committees are informed of all relevant joint exchequer committee meetings, quadrilaterals and trilaterals.

We are not complacent; so much so that our officials are working with the Parliament’s clerks to develop guidance material to raise awareness across the Scottish Government of the need to comply with the written agreement, and to encourage Scottish Government officials to consider any implications of their day-to-day work. We look forward to continuing our work with Parliament.


Murdo Fraser (Mid Scotland and Fife) (Con)

The background to the debate, as was set out by Bruce Crawford a few moments ago, is the written agreement that has been established between the Scottish Parliament and Scottish Government on intergovernmental relations.

Intergovernmental relations between the UK Government and the Scottish Government are now more important than ever. Further devolution has created what is, in effect, a quasi-federal state within the UK. Scotland has two Governments: the Government here in Edinburgh and the Government in London, each of which has different competencies at different levels. There will be a wide range of issues on which it will be important that both Scotland’s Governments work closely together, so there needs to be high-quality engagement between them.

In addition, there needs to be effective scrutiny of intergovernmental relations at parliamentary level, both at Westminster and here in the Scottish Parliament. That point was recognised by the Devolution (Further Powers) Committee, which produced a very helpful report on the issues in October last year. In taking evidence for its report the committee heard from a number of experts about the weakness of parliamentary scrutiny of intergovernmental relations. For example, Professor Michael Keating of the University of Edinburgh’s centre for constitutional change said:

“We have very poor parliamentary scrutiny of intergovernmental relations” —[Official Report, Devolution (Further Powers) Committee, 19 March 2015; c 12.]

Research that was carried out for the committee showed that in a range of other federal, or quasi-federal, states the role of Parliaments in scrutinising intergovernmental relations was greater than it is in the UK.

The House of Lords Constitution Committee, which also considered the issues, stated in its report “Inter-governmental relations in the United Kingdom”, that

“Effective scrutiny of inter-governmental relations requires both greater transparency than currently exists, and the necessary structures and desire in Parliament and the devolved legislatures to scrutinise those relationships.”

The written agreement between the Scottish Parliament and the Scottish Government was entered into in response to those concerns.

The agreement requires the Scottish Government to provide, in so far as doing so is practicable, to the relevant committee of Parliament advance written notice of at least one month prior to scheduled meetings. That will enable the relevant committee to express a view on the topic and, if appropriate, to invite the responsible minister to attend a committee meeting to address the issue and answer questions. That reflects the conclusion of the Devolution (Further Powers) Committee, that the view of the Scottish Parliament needs to be taken into account before any intergovernmental agreement is entered into by the Scottish Government.

The key is transparency. In the Finance and Constitution Committee’s engagement with the Cabinet Secretary for Finance and the Constitution we have so far established what I think is a positive working relationship, in which the cabinet secretary is prepared to engage with the committee on intergovernmental dealings with Westminster. I hope that that is the case for all cabinet secretaries, although it is worth noting in passing that concern has been raised in other quarters about the lack of information that has been provided about the transfer of welfare powers to this Parliament—an issue that surely falls under the definition of intergovernmental relations.

We know that Scottish Government ministers often use intergovernmental meetings to raise concerns that they have about UK Government policy in reserved matters. I asked the Cabinet Secretary for Finance and the Constitution at a recent committee meeting whether that process ever happens in reverse. That does not seem to have been the case with either the current or previous UK Governments, although Michael Russell has told me that Jim Murphy, when he was the Secretary of State for Scotland in the previous Labour Government, was not shy about using such meetings to berate the SNP Administration at Holyrood for what he saw as its policy failures. Clearly, Conservatives in Government are more courteous. [Laughter.]

I want to make one other point before closing. The Devolution (Further Powers) Committee recommended that greater interparliamentary co-operation in scrutinising intergovernmental relations would be beneficial, so I look forward to seeing a work stream develop in which committees of this Parliament can work more closely with committees at Westminster and elsewhere than has been the case in the past.

I suspect that this debate will not make tomorrow’s front pages, but it has been a useful opportunity to air important points about the machinery of government. I am pleased to support the motion in the Bruce Crawford’s name.


James Kelly (Glasgow) (Lab)

I welcome the opportunity to take part in this short but important debate on intergovernmental relations and the written agreement between the Scottish Parliament and Scottish Government. Although it may seem to be quite a dry debate, I reiterate that the subject matter is important.

If we look at the journey of devolution and this Parliament and how it has matured and how more powers have been transferred from Westminster to Holyrood, we see that we have taken on greater responsibility. At the heart of the transfer of powers—some of the powers are shared or, at least, the interests are shared—is the key importance of relationships between the UK and Scottish Governments and between the Scottish Government and Scottish Parliament.

It can be a challenge when the two Governments are different political parties. We could even say that it was a challenge when the Labour Party was in power both at Holyrood and Westminster. It is important that there can be constructive relations. Intergovernmental relations and the agreement are fundamental to achieving that.

As outlined in the agreement, the key principles of constructive relations are transparency and scrutiny. From that point of view, it is important that the meetings that our cabinet secretaries hold with their UK counterparts are fully documented and—the Cabinet Secretary for Finance and the Constitution has been good at this—that cabinet secretaries are available to come to relevant committees and before Parliament to give updates on on-going issues. That is important because of the importance of some of the issues that are considered between Governments. We need look only at the number of debates on Brexit in the chamber since the June vote. There is a lot of contention on the topic, but there is also a lot of interest in this Parliament and the UK Parliament.

The Finance and Constitution Committee has in recent weeks had no shortage of analysts before it to give us their take on the potential implications of Brexit. It is clear—whatever a person’s view on Brexit—that there are serious implications for Scotland and the UK. Given that, the discussions that take place are important.

Next week will see publication of the draft budget, which will cover more financial powers than have ever been devolved before. As part of the work on the budget, we will get to view the block grant adjustment—when it is eventually published—which is crucial. There are forecasting elements to that, so there has been prior negotiation between the UK and Scottish Governments. It will be one of the true first tests of the intergovernmental relations and the written agreement.

The agreement is important for Parliament and for parliamentarians because, ultimately, the decisions that are taken on transfer of powers are not just about the laws that Parliament can pass or the money that Parliament has, but are about the impact that they will have on the people in the constituencies and regions that we represent. It is important that there is proper accountability for discussions and agreements that impact on people, so I welcome the agreement that has been put in place by the Finance and Constitution Committee.

Open speeches should be no more than three minutes, please. John Mason is first.


John Mason (Glasgow Shettleston) (SNP)

Thank you, Presiding Officer, for the opportunity to take part in this brief debate.

The three principles in paragraph 8 of the agreement—transparency, accountability and confidentiality—are inherently fine, but I think that they can be difficult to reconcile in practice. That probably applies in all walks of life; for example, all committees in the Parliament want to meet in public but take some items in private.

Previously, when I was a member of the Finance Committee, the block grant adjustment was a major issue around the time that Scotland took over control of stamp duty and landfill tax. The negotiations dragged on and John Swinney was very limited in what he could say to the committee. Eventually, we understood that the cabinet secretary and the Treasury split the difference of their disagreement during a phone call.

Another negotiation between the two Governments concerned the Scottish Fiscal Commission and who would make the forecasts. That is a subject that we had debated in the chamber and the committee many times and there was clear disagreement between the two Governments. On that occasion, the Scottish Government conceded the point in order to get a wider, more beneficial agreement on the range of issues under discussion. The Finance Committee got hints about how negotiations were going along the way, but we got no detail, despite our questioning. Of course, I would not have expected John Swinney to advertise ahead that he was willing to concede a particular point in the negotiations.

One of the key aims in all this is to allow committees to express a view before the intergovernmental meeting takes place. To go back to the example of the Scottish Fiscal Commission, the committee in fact expressed two different views, so the Government certainly knew what reaction it would be getting from the committee in that case.

On that point, I was interested that, for the meeting of the JMC yesterday, 7 December, the letter from Mike Russell to Bruce Crawford, the committee convener, was dated 5 December—just two days ahead. That may have been because Mike Russell did not know about the meeting, but that clearly would not be enough time for a committee to express a view on a subject if it had not previously considered it. In his letter about yesterday’s JMC meeting, Mike Russell says:

“Although I am unable to provide a detailed agenda for this meeting, I expect the agenda to include substantive discussion on Justice Security and Home Affairs issues.”

I hope that that will not be typical of the amount of detail on the agenda.

There are many caveats in the agreement about disclosing details; it uses words such as

“where appropriate ... the need for a shared, private space ... respect for ... confidentiality”,

and it points out that other Governments can refuse to release information. We will have to see how this develops. For example, if agendas and minutes are not forthcoming, that issue would have to be looked at again.

Overall, any formalisation of the process has to be welcomed; it is a step forward, which is a lot better than no step at all. Those of us on the back benches expect as much transparency and accountability as possible and those two principles should be the assumed starting point.


Patrick Harvie (Glasgow) (Green)

The first line of the agreement says:

“The Smith Commission agreement considered the issue of inter-governmental relations in some detail.”

“In some detail”—whoever wrote that could give Sir Humphrey Appleby lessons in constructive ambiguity. As Linda Fabiani is happily neutral in the chair and as Professor Tomkins is closing on behalf of the committee, perhaps I am the only person who feels free to say that the Smith commission did not have the time to consider any issues in adequate detail.

That was at a time when we were constructing a more complex relationship between the two Governments and between the two Parliaments than there had ever been before. Since then, we have seen additional levels and dimensions of complexity being added. If I thought that the Smith commission was a chaotic mess, I did not know the meaning of that phrase until I saw Brexit. We now have to try to understand how intergovernmental scrutiny will take place in the context of this profoundly new world.

James Kelly is right to say that, fundamentally, the challenge is not new, as it has evolved since the beginning of the Parliament. When a single party was in charge of—or at least the dominant party in—the Government in both Scotland and London, the intergovernmental relationships were more constructive but perhaps less transparent to the rest of us and to wider society. At a time when relationships might go through some rocky patches, merely to add more transparency will not necessarily make matters more constructive. Those challenges are very difficult to overcome. It is important that Parliament and Government, in reaching this agreement, remember that the relationship between them is not a relationship of equals, and that the Government is always accountable to Parliament in everything that it does.

The commitment to engage actively with parliamentary committees is important and is certainly the minimum that we would expect. I am sure that we all agree that we would hope to see the same level of engagement with committees from UK ministers that we expect from Scottish ministers. It is not only Scottish National Party members who I hope will agree with that. When only the Scottish Government ministers put their case in front of committees, we may not, as we should do, get the full picture. I hope that the Conservative Party will also argue that ministers in the UK Government should engage actively—more so than they have done in the past—with Scottish Parliament committees.

Finally, I make a plea that, when we make further changes in future—for example, reviewing the framework when it is due for review—we do so in a more calm, reflective, open and detailed manner than the way in which we have made changes to date.


Adam Tomkins (Glasgow) (Con)

I rise to make this short speech with reluctance and a heavy heart, not because I think that the subject matter is unimportant—quite the contrary—but because it should not be me making the speech. I am the deputy convener of the Finance and Constitution Committee only because my friend and mentor Alex Johnstone is no longer with us. There will be time in due course for much fuller reflection on his unique contribution to Scottish politics, but I could not make this speech today without first paying tribute to him.

I turn now to business, as AJ surely would have wanted.

Intergovernmental machinery is a phrase that is designed to put even the most dedicated politics student to sleep. However, even if our short debate this evening somehow escapes the attention of tomorrow’s front pages, that is more a reflection of the peculiar priorities of the press than it is of the merits of the matter. The truth is that intergovernmental machinery is now core to the success of devolution itself. Hitherto in the devolved era, we have acted as if a power is either reserved to Westminster or devolved to us—it is one or the other. However, even if we did not quite realise it at the time, in those heady days of the Smith commission two years ago—to which Patrick Harvie just referred—we created something new: devolution 2.0. There are still reserved powers and devolved powers, but there are also shared powers—areas of government that are the joint responsibility in Scotland of both the UK Government and the Scottish Government. Welfare and some elements of taxation are only the two best-known examples.

In a parliamentary democracy such as the UK or Scotland, Parliaments have two jobs to do. They make laws—yes, from time to time they are supposed to make laws—and they hold the Government of the day to account by scrutinising its policies, decisions and actions. In a parliamentary democracy, we do not elect the Government directly—we elect a Parliament out of which a Government emerges and to which the Government is accountable. That is the essential constitutional framework within which the written agreement must be understood. It is an agreement—a written component of our famously unwritten constitution—that sets out the framework under which this Parliament can hold the Scottish ministers accountable for the policies, decisions and actions that they develop jointly with UK ministers in Britain’s intergovernmental machinery. Sometimes that machinery is bilateral, as in the joint ministerial working group on welfare, and sometimes it is quadrilateral as in the joint ministerial committee.

Regardless, it is essential that this Parliament is able effectively and robustly to hold the Scottish ministers to account for what they get up to, and indeed what they propose to get up to, in those meetings. There can be no hiding behind the veil of executive secrecy—that is the very opposite of the openness and accountability that we rightly demand.

The Smith commission generally and our chairman Lord Smith in particular were acutely conscious that all the UK’s legislatures needed to do better in this regard. I commend the Devolution (Further Powers) Committee for taking that forward, and I commend the Scottish Government for agreeing to the committee’s proposals as to how to ensure that we in this Parliament are able to do our job properly and hold ministers to account. It is enlightened of the Scottish ministers to have understood that the written agreement is not only in the Parliament’s best interests but also in their own interests. Ministers who are open with the Parliament and its committees are likely to find it easier to explain themselves than ministers who are not. As Murdo Fraser mentioned, the row that we had a few weeks ago about shared competence in the welfare field could have been avoided had ministers been more up front in complying with the requirements of the written agreement.

The written agreement is an excellent piece of work. It is fitting that Alex Johnstone was a member of the committee that developed it in the previous session, and it is fitting that the convener of that committee is in this session the convener of the Finance and Constitution Committee. It is a privilege to serve with him, and a particular pleasure to support him, and indeed the entire committee, in formally commending the written agreement to the Parliament.

That concludes the debate on a written agreement between the Scottish Parliament and the Scottish Government. I thank our British Sign Language signers for signing this afternoon’s proceedings.