The Scottish Government

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Introduction

This Concordat establishes an agreed framework for co-operation between the Scottish Executive and the Home Office, in accordance with the principles set out in the Memorandum of Understanding between the UK Government and the devolved administrations. It is intended to guide the actions of officials in the Scottish Executive and the Home Office on matters for which the Home Office has responsibility.

• The Concordat is not intended to constitute a legally enforceable contract nor to create any rights or obligations which are legally enforceable. However, the Scottish Executive and the Home Office agree to abide by the provisions and obligations set out in it wherever practicable.
• In this Concordat, "the parties" means the Scottish Executive and the Home Office.
• The parties to this Concordat will act in accordance with the principles laid down in the Memorandum of Understanding and the overarching Concordats on European Union Policy Issues, International Relations and Statistics.

Background

• Under the Scotland Act 1998 considerable areas of work for which the Home Office is responsible in England and Wales are the responsibility of the Scottish Executive in Scotland. To a large extent this reflects the fact that Scotland has always had its own distinct system of civil and criminal law and procedures, with separate legislation governing the police, prison, and probation services (see Annex A for list of devolved matters).
• Areas where the UK Government, and in particular the Secretary of State for the Home Department, retain responsibility under the Scotland Act (reserved matters) include the constitution of the United Kingdom, the functions of the security services, national security, immigration and asylum matters, criminal law in relation to drugs, elections to the Scottish Parliament, the UK Parliament and the European Parliament and race equality (see Annex B for list).
• Even in areas which are the responsibility of the Scottish Executive in Scotland, notably most civil and criminal law and procedures, overlaps of interest will arise either on a regular basis, or from time to time. The purpose of this Concordat is to indicate the elements of good practice which should inform contacts between the two administrations in such cases, so as to encourage good communication, promote understanding of the operation of policy and practice in the respective jurisdictions and ensure that the actions of one administration do not unwittingly create difficulties for the other.
• Similar considerations apply to co-operation in areas which are the responsibility of the United Kingdom government, and in particular of the Home Office, in Scotland. This Concordat outlines good practice in situations where responsibility lies with the Secretary of State for the Home Department, but this responsibility needs to be exercised on the ground with the co-operation of the Scottish authorities.
• This Concordat sets out the general framework applying to all the matters for which the Home Office has responsibility. Where more detailed operational arrangements are necessary, additional working level arrangements will be agreed between officials. These arrangements will conform with this Concordat and the Memorandum of Understanding. A list of areas likely to be covered by working level agreements is at Annex C.

Cross-border public authorities

• The Scotland Act allows cross-border public authorities to be specified by Order in Council. A cross-border public authority is a body, government department, office or office-holder which has, in addition to other functions, functions exercisable in or as regards Scotland that do not relate to reserved matters. A list of bodies currently so specified for which the Home Office has responsibility is at Annex D. Great Britain/United Kingdom bodies which deal only with reserved matters in Scotland cannot be cross-border public authorities; a list of such bodies for which the Home Office has responsibility is also at Annex D for ease of reference. (None of what is said in paragraphs 11-16 below applies to bodies which cover only England and Wales).
• The general provisions in the Scotland Act for transferring functions to the Scottish Parliament and Scottish Ministers do not apply to cross-border public authorities. However, for all cross-border public authorities, UK Ministers must consult Scottish Ministers before making appointments or exercising any function in relation to the authority which might affect Scotland other than in relation to reserved matters. Any reports relating to cross-border public authorities that must be laid before the UK Parliament must also be laid before the Scottish Parliament. Orders in Council may also be made to make changes to individual cross-border public authorities to take account of devolution.
• More detailed working level agreements will be needed to set out the parties' responsibilities in relation to individual cross-border public authorities.

Great Britain/UK Bodies

• In the case of Great Britain/UK bodies dealing solely with reserved matters, the Scotland Office should be consulted in the first instance about Scottish interests. It is for that Office to liaise as necessary with the Scottish Executive.
• Although it will normally not be mandatory to consult Scottish interests when making appointments to such bodies, in practice it has been customary to do so when making appointments to a number of Great Britain/UK bodies (for example, the Gaming Board).
• The parties therefore agree that it would be good practice to consult the Scotland Office before making an appointment to a Great Britain/UK body to ascertain whether there are specific Scottish interests to be taken into account. In the case of the Commission for Racial Equality, the appointment of a member with special knowledge of Scotland will be made with the agreement of the Secretary of State for Scotland.
• While it will not be mandatory for Great Britain/UK bodies to lay before the Scottish Parliament reports presented to the UK Parliament, it would be courteous to do so. The parties therefore agree that as a matter of good practice the Home Office will ensure that such reports are laid before the Scottish Parliament.

Consultation arrangements, early notification and exchange of information

• The parties recognise the need to keep in close touch with each another on matters of common interest or where one party's work may have some bearing on the responsibilities of the other. In accordance with the framework set out in the Memorandum of Understanding, whenever possible each party should be forewarned of relevant action by another, in sufficient time to allow representations to be made and for these representations to be fully considered.
• The parties also confirm their commitment to provide each other with full and open access to scientific, technical and policy information including statistics and research. The Home Office will continue to process statistics and commission research on a GB/UK wide basis where concurrent functions are exercisable, where the statistics or research relate to matters which are not wholly devolved or otherwise by mutual agreement.
• The circumstances in which exchange of information is appropriate will vary widely, so uniform procedures cannot be laid down. The guidelines below set out normal expectations. It is recognised that, in exceptional circumstances, these norms may not be achievable or appropriate. But the parties should use their best endeavours to achieve them and any failure to do so should be reviewed annually (see paragraph 25).

Contact under the terms of this Concordat will normally take place bilaterally. Consultation should normally be in writing, but should be supplemented by additional informal contact wherever possible.

Confidentiality

• The framework set out in the Memorandum of Understanding on confidentiality will apply to the exchanges of information between the parties. The parties accept that they can expect to receive information in confidence only if that information is treated with appropriate discretion. The administration providing the information will state what, if any, restrictions there should be upon its usage and both parties will treat information they receive in accordance with any such restrictions. Disclosure of information will be subject to the Code of Practice on Access to Government Information or the Code of Practice on Access to Scottish Executive Information and in due course the requirements of future freedom of information regimes.

Correspondence

• Both parties are committed to ensuring that the handling of correspondence is given a high priority. Correspondence will be handled in accordance with the principles set out in the Memorandum of Understanding and any procedures agreed between the administrations on common working arrangements. Where correspondence has to be transferred, each party will aim to transfer letters within 5 working days of receipt. Within the same time, the correspondent should be told what action has been taken and who is now responsible for handling their correspondence. (Any Freedom of Information legislation will have implications for confidentiality and correspondence handling. This paragraph and paragraph 21 above will therefore need to be revised when a Freedom of Information Act comes into force).

Finance

• Financial arrangements will be handled in accordance with the statement of funding policy issued by HM Treasury: Funding the Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly.

Reaching agreement

• The framework for reaching agreement and resolving disputes set out in the Memorandum of Understanding will apply to relationships between the parties. The parties will seek to resolve any disagreement or dispute arising over the operation of this Concordat bilaterally at working levels wherever possible. In the event that agreement cannot be reached the matter will be passed to Senior Civil Service levels or if necessary to the Heads of Departments for a decision. Only very exceptionally should it be necessary to refer matters to Ministerial level or the Joint Ministerial Committee under the arrangements described in the Memorandum of Understanding.

Reviewing bilateral relations

• The operation of this Concordat will be reviewed annually by the Permanent Secretary at the Home Office and the Permanent Head of the Scottish Executive Justice Department - normally by means of a meeting.
• This concordat may be amended at any time by mutual agreement between the parties.

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