CONCORDAT BETWEEN THE SCOTTISH EXECUTIVE AND THE DEPARTMENT FOR CONSTITUTIONAL AFFAIRS

Annexes

Annex A Tribunals

Annex B Public Records

INTRODUCTION

1. This Concordat is made between the Department for Constitutional Affairs (DCA) and the Scottish Executive. It is intended to provide the framework to guide future working relationship between the Secretary of State for Constitutional Affairs, other DCA Ministers and DCA officials and Scottish Ministers and their officials. In this Concordat "the administrations" means the Office of the Scottish Executive and the Department for Constitutional Affairs. The terms "DCA" and "the Executive" also include their respective Executive Agencies where appropriate.

2. The main body of this concordat specifies the general working arrangements between DCA and the Executive. There is also an annex containing additional arrangements between DCA and the Executive. There is also an annex containing additional arrangements provided for in the main body of this concordat, taken together with the Memorandum of Understanding (MoU), the Joint Ministerial Committee (JMC) agreement, the overarching concordats, and the guidance on common working practices will be followed.

GENERAL PRINCIPLES

3. This Concordat is intended to promote constructive co-operation and communication. It sets out a working framework within which Ministers and officials may continue to develop relationships between the administrations. The primary aim is to ensure that if either is planning action impinging on the responsibilities of the other, it gives adequate forewarning. We aim to foster a constructive and harmonious working relationship based on the principle of 'no surprises'. This forewarning should where possible be given in sufficient time to enable representations to be made, and for these to be fully considered.

NATURE OF CONCORDAT

4. This Concordat has been drawn up in accordance with the principles outlined in the MoU which defines the principles and practices guiding relations between the UK Government and the devolved administrations in Scotland , Wales and Northern Ireland . The MoU is supplemented by an agreement on the JMC and by guidance on common working practices. There are also over-arching concordats setting out the framework for co-operation on EU business, financial assistance to industry, international matters and statistics. Where those matters are concerned reference should first be made to those concordats. This Concordat is a voluntary agreement rather than 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 (for further information see 'Statutory Framework' section). 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 the administrations.

COMMUNICATION

5. DCA 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. The administrations will undertake to exchange information and inform or consult each other on a wide range of issues in a wide range of situations. This Concordat is not intended to be an exhaustive description of every aspect of the relationship between them, or to preclude communications between them about issues or situations not covered in the Concordat. It is not feasible to prescribe in detail the circumstances triggering a need to invoke the arrangements set out in the Concordat; nor the exact form of communication and timescale involved.

6. DCA and the Executive 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. The administrations will use their judgement, taking into account the terms of the Concordat, in determining for any given issue the procedures, level of detail and timescale that appear reasonable and appropriate in a given circumstance. This judgement should, however, wherever possible be made in accordance with the general principle set out above of 'no surprises'.

7. The principal channel of communications between the administrations should be bilateral contact at official or ministerial level. The vast majority of matters that affect the responsibilities of the administrations should be capable of resolution at this level (Also see 'Reaching Agreement' section). Formal contact at official level will normally take place between the subject area contact points as notified by the administrations. Formal consultation should normally be in writing (this includes email). It should however be supplemented by regular informal contact wherever possible. This Concordat is framed in terms of the relationship between DCA and the Executive but in some cases the most effective way of conducting business will involve otherUK departments or devolved administrations. Where relevant the two administrations will as far as possible abide by the Concordats drawn up between other departments in the four administrations.

STATUTORY OBLIGATIONS

8. 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 inScotland 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 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 functions of either the Secretary of State or the Scottish Ministers to be exercised by the other on an Agency basis.

DEVOLVED MATTERS

9. Certain matters for which DCA has responsibility for in England and Wales are in Scotland devolved to the Scottish Executive. In relation to such matters the two administrations will:

· seek to involve each other, as and when appropriate, in policy formulation;

· keep each other informed about developments;

· give appropriate consideration to the views of the other and where possible allow a reasonable timescale for proper consideration of comments and representations;

· inform each other at the earliest practicable stage of any proposal to change primary and secondary legislation, and to highlight the potential implications for the other's responsibilities;

· inform each other of any relevant information which comes to their attention which may require action by or have resource consequences for the other administration;

· give advance notification at the earliest practicable stage of substantive new policy announcements;

· share information, analysis and research, where such arrangements would be of mutual benefit.

JOINT AND CONCURRENT POWERS

10. These principles will also apply to those matters where the administrations exercise joint and concurrent powers. Joint powers are those where it is a legal requirement for Scottish Ministers and UK Ministers to act in agreement and together, or for UK Ministers to act only after consultation with the Scottish Ministers (or vice versa). Concurrent powers are those which eitherUK or Scottish Ministers or both will be able to exercise in Scotland .

RESERVED MATTERS

11. In relation to reserved matters for which DCA has the lead within the UK , DCA will inform the Executive a early as possible of proposals on matters likely to be of interest to the Executive. This will as far as possible be done before any public announcement is made, and in sufficient time to enable the Executive to make comments should it so wish and for these to be considered. DCA and the Executive will inform each other of any relevant information which comes to its attention which may require action by the other party.

12. DCA 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 DCA on the effect on devolved matters of a proposal by DCA. 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.

INTERFACE BETWEEN RESERVED AND DEVOLVED MATTERS

13. The Executive will consult DCA at an early stage when there is a possibility that a proposed policy or decision may relate to reserved matters for which DCA is responsible. This includes any possibility that proposed Scottish legislation might affect such reserved matters, particularly if this involves consequential changes in legislation on such matters. DCA will similarly consult the Executive at an early stage where a proposed policy or decision on reserved matters may affect devolved matters.

JOINT WORKING

14. The administrations may set up, on a voluntary basis, joint working groups or committees where considered appropriate. The form which joint working may take is varied and will be determined by the particular circumstance.

15. Detailed arrangements on matters relating to administrative justice are set out in Annex A.

INTERNATIONAL MATTERS

16. In such matters the two administrations will abide by the over-reaching Concordats on International Relations and on Co-ordination of European Union Policy Issues as provided for in the MoU.

FINANCIAL ARRANGEMENTS

17. The two administrations will act in accordance with the Statement of Funding Policy, published by the Treasury on 31 March 1999 .

CONFIDENTIALITY

18. The two administrations will abide by the principles regarding confidentiality set out in the MoU.

APPOINTMENTS AND CROSS BORDER AUTHORITIES

19. Particular considerations apply to consultation between the administrations on appointments, including judicial appointments and appointments to Cross Border Public Authorities specified under section 88 of the Scotland Act 1998. These will be carried out on a confidential basis between named official(s) as notified by the administrations in writing, or their successors as notified form time to time in writing. The administrations will deal with any issue arising under this heading as swiftly as possible so as to meet any deadlines set. Any correspondence involving judicial appointments or re-appointments will be carried out under the cover of "Appointments - In Confidence".

GENERAL ADMINISTRATION

20. The administrations 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 any accompanying guidance.

21. The Executive will inform DCA in advance of public statements which can be prepared well in advance on devolved matters which are, in England and Wales , the responsibility of DCA or which impact on reserved matters. DCA will inform the Executive in advance of public statements on DCA responsibilities which are devolved matter inScotland or impact on such matters.

22. The administrations will abide by the arrangements set out in the overarching Concordat on Statistics regarding communication on statistics, analysis, monitoring and research.

LEGISLATION

23. Where DCA has a policy interest the Executive will send to the DCA contact point for that policy:

· a copy of primary legislation, both when first published as a Bill and when it has received Royal Assent;

· a copy of secondary legislation when made.

PUBLIC RECORDS

24. Annex B sets out administrative arrangements relating to requests for access, under Freedom of Information legislation, to UK public records which have been transferred to the Keeper of the Records of Scotland by UK public authorities.

REACHING AGREEMENT

25. The administrations are committed as far as possible to handle matters through normal administrative channels, either at official or ministerial level. Every effort will be made to avoid disputes. Where this is not possible, disputes will be considered by senior officials and, if necessary, Ministers to seek a mutually acceptable resolution.

26. Where exceptionally a dispute can not be resolved bilaterally, or through the good offices of the Secretary of State for Scotland , the matter may be formally referred to the Secretariat of the JMC, subject to the guidance set out in Agreement on the JMC. Each administration will inform the other beforehand of any proposal to involve the JMC and will allow the other the make appropriate representations. The JMC Secretariat will also be consulted at an early stage.

27. Each administration will also inform the other beforehand of any proposal to invoke the intervention powers contained in the Scotland Act 1998, and will allow the other to make appropriate representations.

REVIEW AND RENEWAL OF CONCORDAT

28. It will be open to DCA or the Executive to propose alterations to the Concordat at any time to reflect changes in policy or to administrative practice, including any changes to the MoU and overarching Concordats. Annexes may be added, removed or amended as and when the need arises, by agreement between DCA and the Executive. No amendment shall take place without mutual discussion and agreement.

29. This Concordat will be reviewed periodically, at a maximum of three yearly intervals and more frequently if required. The date of the last review was July 2005.

ANNEX A

TRIBUNALS

1. The Lord Chancellor has responsibility within the UK Government for co-ordinating redress policy. The Government has also decided to bring almost all tribunals currently administered by central government into a single unified system under the Department for Constitutional Affairs. Some of these tribunals sit inScotland . The Scottish Ministers have a wide variety of roles in relation to these tribunals, including the right to appoint members or be to consulted on appointments, providing buildings and staff and involvement in the making of procedural rules and other regulations. Scottish Ministers also have responsibilities in respect of tribunals which sit only in Scotland and deal only with devolved matters.

2. In relation to matters concerning tribunals in Scotland for which the Lord Chancellor has responsibility, the principles set out at paragraphs 6 and 7 of the concordat will apply.

i) ADMINISTRATION

3. The Department for Constitutional Affairs will keep in touch generally with the Justice Department over developments in the administration of tribunals for which it is responsible in England and Wales which might have an impact in Scotland . In reforming and unifying the administrative structure for the tribunals administered by central government, the DCA will as far as possible avoid making decisions which would have the effect of precluding new and different arrangements being created in the future for Scotland, including the possibility that at some future date the Scottish Ministers may wish to create a unified tribunal administration in Scotland embracing both central government and devolved tribunals. The creation of such an administration would require the agreement of the Lord Chancellor and the Scottish Ministers.

4. For as long as there are separate tribunal administrations in Scotland the governments will work together to try to achieve a common approach to providing services so that users can have similar expectations of both. This will include the sharing of premises where this is practical and cost-effective, and interchange of staff.

5. The Scottish Ministers are currently responsible for providing staff and premises for the Social Security and Child Support Commissioners and the Pensions Appeals Tribunals and premises for the VAT and Duties Tribunal in Scotland . (Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc) Order 1999 Schedule 4 paragraph 2). Where a tribunal other than these, for which the Lord Chancellor has responsibility, sits inScotland and requires assistance the Justice Department will assist with arrangements so far as it is able.

ii) APPOINTMENTS AND RULES

6. The UK Government propose to legislate to replace the present patchwork of arrangements for tribunal appointments and rules with a standardised system, and to replace the Council on Tribunals with an administrative justice council. The new system will need to adequately provide for involvement by Scottish Ministers where decisions particularly affectScotland . The UK Government will keep the Scottish Ministers informed on the development of these proposals. Both administrations will bear in mind the desirability of achieving the highest standards in tribunal appointments and the importance to users of simplicity and accessibility in procedure.

ANNEX B

PUBLIC RECORDS

1. Under section 3(8) of the Public Records Act 1958 ("the 1958 Act"), UK public records which relate wholly or mainly to Scotland are transferred to the Keeper of the Records of Scotland ("the Scottish Keeper"). This Annex sets out the arrangements for dealing with requests for access to such records under the Freedom of Information Act 2000 ("the UK FOI Act") and the Freedom of Information (Scotland) Act 2002 ("the Scottish FOI Act").

2. For the purposes of the arrangements set out in this Annex, any UK public record transferred to the Scottish Keeper will be either fully open or fully closed. Where aUK authority considers that only part of the information on such a record can be designated as open, the whole record will be designated as closed. (Paragraphs 5 to 8 below explain the meaning of "open" and "closed" records for the purposes of this Annex - it should be noted that these are different from the traditional meanings which relate to whether or not records held in an archive are accessible to the public.)

3. At the time when a UK authority transfers a closed record to the Scottish Keeper, the authority and the Keeper will agree the closure period, ie the date from which the record will cease to be "exempt information" under the UK FOI Act. At that date the record will become an open record and be subject to the arrangements set out in paragraphs 5 and 6 below.

4. Uk public records which are held in Scottish archives other than the National Archives of Scotland (NAS) shall, for the purposes of the arrangements set out in this Annex, be treated as if they were held by the Scottish Keeper. Accordingly, such records will be subject to the arrangements set out below for open or closed records as appropriate.

i) OPEN RECORDS

5. "Open records" are records containing only information which has been designated as open for the purposes of section 3(4)(b) of the Scottish FOI Act by the UK public authority which passed them to the Scottish Keeper. Under section 3(4)(b) of that Act, these records will be regarded as being held by the Scottish Keeper for the purposes of that Act. This has the effect of bringing such records within the scope of the Scottish FOI Act.

6. In practice, aUK public record will be designated as "open" only if the UK authority considers that all the information it contains can be made automatically accessible to the public. T he Scottish Keeper makes such open records available for inspection and (where practicable) copying by members of the public on request. Therefore, under the terms of section 25 of the Scottish FOI Act, open records are information which is otherwise accessible, and so they are "exempt information" for the purposes of that Act. This means that open records are exempt from the general entitlement to information provided by the Scottish FOI Act and, instead, the arrangements under which the Scottish Keeper makes these records available to the public will continue to apply.

ii) CLOSED RECORDS

7. "Closed records" are records containing only information which has not been designated as open for the purposes of section 3(4)(b) of the Scottish FOI Act by the UK public authority which passed them to the Scottish Keeper. In terms of the arrangements set out in this Annex, closed records shall be dealt with on the basis that they are held on behalf of the Keeper of Public Records ("the UK Keeper"). This means they are to be treated as subject to the UK FOI Act (see section 3(2)(b) of that Act).

8. In practice, this will mean that a closed record contains at least some information which is covered by an exemption under the UK FOI Act and which the UK authority considers cannot be made automatically accessible to the public. Therefore, when the Scottish Keeper receives a request for access to such a record he will pass the request, and provide access to relevant information, to The National Archives (TNA) to deal with in accordance with the UK FOI Act and therefore in consultation with the UK public authority where the record originated from. TNA, in consultation with the NAS, will decide whether or not it its necessary to transmit the record or whether they can be supplied with the relevant information by an alternative method. This may include photocopies, or digital images, or extracts of the record. If the original record is sent to TNA, TNA will return it to the Scottish Keeper as soon as possible after they have dealt with the request.

9. If, following consideration of such a request, it is decided to open the whole record, TNA will inform the Scottish Keeper that it can be made available as an open record in accordance with the arrangements described in paragraphs 5 and 6 above. If it is decided to keep the record closed, the record will remain subject to the UK FOI Act and any further requests for access to that record will be dealt with in accordance with the arrangements described in paragraphs 7 and 8 above. If TNA conclude that only part of the information on a record is to be supplied to a requester, the whole record will remain closed at the NAS.

10. Some records transferred to the Scottish Keeper will have been created by government departments or bodies which, in terms of paragraph 2(2) of the First Schedule to the 1958 Act, are wholly or mainly concerned with Scottish affairs or carry on their activities wholly or mainly in Scotland and such records are outside the scope of that Act. The main examples are the Scotland Office and the Commissioners of Northern Lighthouses. In these circumstances, closed records transferred to the Scottish Keeper shall, under the terms of the arrangements set out in this Annex, be dealt with on the basis that they are held on behalf of the authority concerned for the purposes of the UK FOI Act. The Scottish Keeper will pass any requests for access to these records to the authority concerned for them to deal with under the UK FOI Act.