Memorandum of Understanding and Concordats

– in the Scottish Parliament at 9:32 am on 7 October 1999.

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Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament 9:32, 7 October 1999

Our business this morning is a debate on a motion on the memorandum of understanding and an amendment lodged by the Scottish National party.

Photo of John Swinney John Swinney Scottish National Party

On a point of order, Presiding Officer. This morning, we are being asked to consider a motion lodged by the First Minister that asks the Parliament to endorse

"the Memorandum of Understanding and supplementary agreements concluded between the United Kingdom Government, Scottish Ministers and the National Assembly for Wales".

This morning in Cardiff, the National Assembly for Wales will consider these concordats for the first time. The Assembly will debate a motion in the name of Andrew Davies, the member for Swansea West, which proposes

"that the Assembly takes note of the Memorandum of Understanding and overarching concordats".

I emphasise the phrase "takes note". As a result, the First Minister's motion before us today appears to be technically incompetent as it refers to an agreement reached between three parties: the United Kingdom Government, Scottish ministers and the National Assembly for Wales. Even if the National Assembly for Wales agrees to take note of the memorandum of understanding today, that does not signify the Assembly's agreement to the contents of the memorandum and other documents.

In any case, at this stage in the proceedings, the motion before us is technically not competent for this Parliament's consideration because the three parties mentioned in the motion have not agreed to the contents of the memorandum of understanding.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

I thank Mr Swinney for the notice, albeit short, that he courteously gave me of this point of order.

Does any member of the Executive wish to respond to Mr Swinney's point of order?

Photo of Donald Dewar Donald Dewar Labour

In fact, I did not get any notice of the point of order. The matter has just been drawn to my attention in the past two minutes.

Mr Swinney has half a good point, which he is managing to turn into a bad point by expanding enormously on it. It is clear that there has been an omission from the text of the motion. The motion should read, "the Cabinet of the National Assembly for Wales".

However, the purpose of this debate is quite clear. Furthermore, to take up Mr Swinney's point, we are asking the Parliament to "endorse" the memorandum, while the Welsh National Assembly will merely "take note" of the document. As a result, we are giving this Parliament a greater part in proceedings than our Welsh colleagues are apparently intending to do with their Assembly.

In any event, I accept Mr Swinney's point and congratulate him, or whoever it was, for noticing the omission. The text should read,

"the Cabinet of the National Assembly for Wales" which is the phrase in the first paragraph of the first part of the memorandum. This document is an agreement between Administrations and Whitehall departments. Presiding Officer, would you allow me to submit a manuscript amendment as the matter only involves a textual change? Although I apologise for the omission, I do not think that it substantially alters the purpose of our business.

Photo of John Swinney John Swinney Scottish National Party

On a point of order. I thank the First Minister for his comments and for acknowledging the problems that have been created for the Parliament by this omission from the motion. Presiding Officer, will you clarify whether the status of the change that is proposed by the First Minister constitutes a formal amendment to his motion? Furthermore, will we have to vote separately on such an amendment at decision time?

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

First of all, I want to say that it is a pleasure to deal for a change with a genuine point of order, however difficult. [Laughter.]

I think that the commonsense thing to do is to accept written notice of a manuscript amendment. I will then announce the amendment during the debate. However, the amendment will not be required to be voted on; it will simply be an amendment to the motion. [Interruption.]

I am advised that we probably will have to vote on the amendment, but I will think about that later. However, for the moment, I would like the necessary written notice of the amendment, which I will then announce during the debate. In the meantime, I suggest that we get the debate going. I call the First Minister to move the motion.

Photo of Donald Dewar Donald Dewar Labour 9:37, 7 October 1999

I was entertained by that exercise in barrack-room lawyers' skills. I say that as a compliment to Mr Swinney—I have never sneered at able barrack-room lawyers. They are pests and, as far as I am concerned, Mr Swinney aspires to be a pest. He ought to be pleased that I recognise that fact.

The memorandum of understanding is a brief, but important, document. It has been written with both economy of style and great clarity and has not imposed an enormous burden of reading on MSPs.

The document deals with relations involving Whitehall departments, the UK government, the Scottish Executive and the Cabinet of the National Assembly of Wales. We also hope to include the cabinet or executive of the Northern Ireland Assembly when that administration emerges.

The one useful aspect of the exchanges of the past few minutes is that I am able to underline the fact that this document deals with working relationships between the Administrations that are party to it. This is not a legally binding document that can be enforced through litigation or in the courts. It outlines sensible working practice and is the result of a team effort involving Westminster, Holyrood, Cardiff and the people of Northern Ireland.

From the beginning of talks until 1 July, Scottish Office civil servants who now serve the Administration were very involved in bilateral meetings between officials. The document outlines a clear and sensible set of ground rules by which to order our relations with others who have an interest in the devolution settlement and with whom we will have to work in future.

As John Swinney has pointed out, the Executive's motion is deliberately not a take-note motion; we are asking for the Parliament's endorsement of the document. However, I stress again that the document should be seen as a set of administrative ground rules.

The concordats are essentially working documents, which will contribute to the smooth running of relationships under devolution. Some unkind souls have called them road maps for bureaucrats. Perhaps that is unkind, but it is not wholly unfair as it is important for bureaucrats to have road maps to know how the system works.

Photo of John Swinney John Swinney Scottish National Party

The First Minister made a comment on whether the documents are legally binding. I refer him to an exchange in the House of Commons on 12 May 1998 between Mr McLeish, then Minister for Home Affairs and Devolution, and Mr Wallace, who was then a member of the Opposition, in which Mr McLeish said that the concordats "will be justiciable to an extent."—[Official Report, House of

Commons, 12 May 1998, Vol 312, c 193.]

He further said that the Scottish Executive, if it failed to follow, for example, the consultation processes inherent in the documents, may find some legal action taken to bring it to account.

Will the First Minister tell us the circumstances in which he thinks Mr McLeish's advice to Mr Wallace is valid, and the extent to which that puts legal constraints on the Executive to follow the contents of the concordats, despite the fact that the Executive, on instruction from this Parliament, may take the view that the actions that it is taking are in the interests of this Parliament and of the Scottish people?

Photo of Donald Dewar Donald Dewar Labour

I am not aware of that quotation. I accept, though, from John Swinney, that that was said. I will take advice on this in the course of this morning, but my understanding is that the documents are not legally binding. Clearly, there are situations in which a judicial review of the actions of any Administration can arise. I presume that that is a reflection of the fact that the power to go to court to ask for a judicial review remains if it is thought that an Executive or Administration has acted unreasonably and prejudiced the interests of an individual.

The documents are not legally binding in the sense that a finger can point and say, "I read such-and-such in paragraph X. That has not been carried out and I ask for a declarator that it should be." However, the general power of judicial review, presumably, remains.

Photo of Murray Tosh Murray Tosh Conservative

To follow on from the previous point, how might this Parliament scrutinise the working of the concordats? It appears that the Public Administration Committee of the House of Commons can do so. In this Parliament, there is no obvious mechanism for us to scrutinise how the Executive discharges those functions. Could the First Minister spell out how the Administration sees that being done?

Photo of Donald Dewar Donald Dewar Labour

One of the features of this Parliament is a range of committees that are probably more powerful than any parliamentary committees that I have seen. They have a life and responsibilities of their own. It would not be beyond the wit and wisdom of the European Committee, for example, under the convenership of my colleague Hugh Henry, if he suspects that things are going wrong, to call witnesses, to scrutinise and inquire into the record and to call ministers. If there was discontent about the outcome of that, it could come back to the floor of this chamber, which, ultimately, is the place where final decisions have to be taken.

The concordats are working documents, and my contention to this Parliament is that it is very important that they are in place. In the course of time, whatever the good intentions in the opening period, one may find that the proper procedures slip; people may start to omit and to forget. It is extremely useful for ourselves and for our colleagues in Wales and, potentially, in Northern Ireland, to have such a working document. In the Westminster setting, it is a familiar piece of machinery. I think that it is right for it to be extended, in the interests of good order, to our relations with the rest of the Government machinery within the United Kingdom.

I will hurry on, because I am conscious of the time. Members will forgive me if I do not take too many interventions.

There are five documents contained within the paper that we have laid before the Parliament. The memorandum of understanding sets out the main principles of the relationship and deals with communication, consultation between Administrations, exchange of information and confidentiality and the monitoring and management of the devolution settlements.

There is an annexe to the memorandum, which people will no doubt wish to examine closely. It details the terms of reference of the joint ministerial committee, its format and working practices.

The package also contains more detailed concordats dealing with co-ordination of European Union policy issues, international relations, statistics and financial assistance to industry. All those will be of interest to members.

There has been a lengthy gestation period. I accept that. This batch of concordats had to be approved by all the potential partners—I say potential because Northern Ireland was in a slightly different situation—and worked out between all the Whitehall departments with an interest.

The delay has been not only legitimate, but valuable, because it has produced a careful set of working documents, which will of course be followed by bilateral documents involving the Scottish Executive and individual departments. The delay has perhaps provoked a good deal of speculation. It has certainly provoked a substantial mass of parliamentary questions, as members opposite have set off on a determined fishing expedition. I imagine that we will have the normal low-key closure to the debate from Alex Neil, who has been notorious—

Photo of Donald Dewar Donald Dewar Labour

Opening—worse still. Do not give me all the bad news at once.

I am sorry to see this: I thought that John Swinney was here to substitute for Alex Salmond, but Alex Salmond must be rather stuck if he has had recourse to Alex Neil, but there we are. [MEMBERS: "Aw."] Oh, come on.

I make a serious point. The documents have been misunderstood and, on occasion, misrepresented. There is no cause for that. They come before the Parliament totally and exactly as advertised.

John Swinney has been reading back through Hansard. He will remember that, as far back as October 1998, John Sewel stated:

"They will cover a range of matters, such as procedures for the exchange of information, advance notification and joint working."

The concordats deliver that promise. He also said:

"These are, of course, working documents intended to aid the process of efficient administration"—[Official Report, House of Lords, 6 October 1998; Vol 593, c 391-92.]

That remains their purpose. My contention is that we have delivered what was promised: sensible, workmanlike documents, based on common sense. There will be those in this chamber who will claim, with various degrees of indignation, and sometimes even insincerity—but normally, I concede, with sincerity—that the documents do not conform to contract.

The nationalists, consistent in this argument, have determinedly imported their own definitions and their own design for the future—a totally separate nation state—as a template against which to judge these concordats. That is a totally unreasonable position to take. No doubt, there will be a continuing argument about whether to go down that road. But what happened is that people voted for the devolution settlement; Parliament passed and endorsed the devolution settlement; even the Conservative party—I congratulate them—at least allege that they are converts to the principles of devolution. The documents, properly and understandably, reflect the requirements of the devolution settlement.

Photo of Donald Dewar Donald Dewar Labour

I put it to Margaret Ewing, who rises, that that is proper and is what should be expected. There is therefore no cause for trying to set up a series of false objectives and then complaining that they have not been met.

Photo of Margaret Ewing Margaret Ewing Scottish National Party

I make no pretence, as Donald Dewar knows, about my strong and long-standing commitment to independence. I am concerned that the documents seem solely to relate to an Administration, not to the Parliament, which represents the views of the Scottish people. Where is the role of this Parliament in discussions of the concordats and of how they may develop?

Photo of Donald Dewar Donald Dewar Labour

Where is its role? We are actually discussing the documents at the moment. It seems slightly perverse for Margaret Ewing to ask, "What is our role?" when we are having a debate on the documents. I do not know, but there is likely to be a division later today on my motion. That is a classic example of misinterpreting what the documents are about. They are working documents, laying down a ground rule—a framework—within which Administrations operate. The exchange of statistical information, for example, is perhaps not enormously exciting in a political sense, but the end product is of great importance.

We must be able to get the information that we need; we must have a duty to contribute the information that the Administrations want. To set out rules to govern that seems to be entirely sensible and straightforward.

I say again to Margaret Ewing that she is misinterpreting the essential purpose of the documents and is trying to erect another set of criteria which they were never intended to meet.

Photo of Hugh Henry Hugh Henry Labour

Alex Neil commented that the concordats are defective because they have been drafted in secret in London, and that they are heavily weighted towards London's interest. He has now listened to what the First Minister has said. Will the First Minister confirm that the Scottish Executive and the other partners have been fully involved in the discussions on the concordat?

Photo of Donald Dewar Donald Dewar Labour

Of course they have. I have made the point that before 1 July, when I was still Scottish secretary, officials from the Scottish Office were involved in the bilateral discussions and that that has continued since 1 July under John Reid. The concordats then came to us for final approval and have now been brought before this Parliament as a courtesy, because I believe that it is right that there should be a debate on them and that they should be endorsed by the Parliament.

Photo of Donald Dewar Donald Dewar Labour

I was asked to speak for only 15 minutes, so I am getting alarmed at the number of interventions. I will let Alex Neil in once, but then I must make some progress.

Photo of Alex Neil Alex Neil Scottish National Party

Are the First Minister and Hugh Henry trying to kid us on that the concordats were reached jointly? In an answer that I received from the First Minister on 1 October, he said that the UK Government had prepared the drafts.

Photo of Donald Dewar Donald Dewar Labour

That is a tremendously clever point, but it shows a total misunderstanding of the constitutional position. The drafts were prepared, against the backdrop of the arrival of devolution, by the United Kingdom Government, which included the Scottish Office, the relevant partner at the time. We could not consult a Scottish Executive that did not exist. Once the Executive came into existence, the drafts were sent to it for its approval and for continuing adjustment.

The situation is perfectly straightforward. Alex Neil is chasing around looking for problems that are not there and for conspiracies that do not exist, which is not a particularly becoming occupation.

John Swinney must also have been let down by his research assistants, because what Henry McLeish said was that:

"The concordats are not intended to be legally binding contracts, or to substitute for matters properly covered by the Bill. However, it is likely that they will be justiciable to an extent. For example, if the Scottish Executive did not follow the consultation procedure set out in a concordat, it could be judicially challenged on the ground that the concordat had created a legitimate expectation that the procedure would be followed."—[Official Report, House of Commons, 12 May 1998; Vol 312, c 193.]

Photo of John Swinney John Swinney Scottish National Party

That is the point that I was making.

Photo of Donald Dewar Donald Dewar Labour

No. You missed out the fact that the concordats are not intended to be legally binding. Mr McLeish was clearly referring to the possibility of judicial review. We must be clear about that.

Photo of Donald Dewar Donald Dewar Labour

No. The Presiding Officer will take me to task in his extremely polite, but somewhat damaging, way if I continue a running dialogue with the member.

The documents are not rules for procedure, designed for a nation state that is living uncomfortably with a partner that has recently been relegated to the status of next-door neighbour. As I have stressed, the Scottish people voted for devolution—not independence—and to retain the significant advantages that come from being part of the United Kingdom. That is the basis on which the arrangements described in the document have been constructed and on which the document should be judged. The concordats are about delivering on our promises to the people of Scotland. They are about different Administrations recognising their responsibilities. That is why they should be welcomed.

I will say a brief word or two about the five concordats that comprise the package. The memorandum of understanding sets out the main principles to be followed: consultation; early warning; joint working; and confidentiality, such as is needed to ensure free and candid discussion.

Detailed arrangements for the joint ministerial committee are set out in an annexe. The committee will bring together ministers from all the United Kingdom's devolved Administrations and from the United Kingdom Government. The committee will consider reserved matters that have an impact on the Executive's responsibilities and devolved matters that have an impact on reserved areas. Meetings can be called by any of the members.

The United Kingdom specifically recognises the need to involve devolved Administrations early in discussions on, for example, European Union negotiations. If bilateral discussions between officials or individual ministers leave unanswered questions, the joint ministerial committee will allow wider discussion of issues. The committee is a sensible and specific piece of machinery that will help to bind together the working relationships that we need.

Foreign policy, including European Union issues, is a reserved matter. However, many devolved areas have a major EU element; for example, agriculture, fishing and the environment. It is, therefore, important to have in place an agreement on how such issues should be handled. The relevant concordat covers how to deal with exchange of information, mechanisms for agreeing a UK line, attendance at EU meetings and less formal contacts with EU institutions. It also details how to proceed on implementation and infraction issues. It would be chaos if we did not have such understandings and agreements.

Photo of Donald Dewar Donald Dewar Labour

I am sorry, but I must press on.

Photo of Dr Winnie Ewing Dr Winnie Ewing Scottish National Party

I have a question on a European matter.

Photo of Donald Dewar Donald Dewar Labour

I will let Dr Ewing in just this once.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

Dr Ewing, you must insert your card for your microphone to work.

Photo of Dr Winnie Ewing Dr Winnie Ewing Scottish National Party

I am so sorry.

Is not it the case that, prior to today's debate, it was said, for instance by Mr McLeish when the European Parliament Committee on Legal Affairs and the Internal Market visited Edinburgh, that if the Scottish interest dominated on a particular issue, for example, on fishing, the Scottish minister attending negotiations would have priority? Has that position changed?

Photo of Donald Dewar Donald Dewar Labour

Nothing has changed. I will come on to that in a moment, but the position remains that we will be fully involved in the formation of policy, that we will be in attendance at negotiations and that there will be agreement on who should speak on any specific occasion. That has always been the position and it is a sensible one. The system is already in place and is beginning to work well. I hope that people accept that.

The European Union concordat allows for Scottish Executive ministers and officials to have full and continuing involvement in policy formulation, negotiation and implementation. If Dr Ewing looks at paragraph B1.3 of the concordat on co-ordination of EU policy issues, she will see that it states unambiguously that,

"the UK Government wishes to involve the Scottish Executive as directly and fully as possible in decision making on EU matters."

If she has the energy to pursue the matter, Dr Ewing will see that that message is reinforced in paragraph B3.13, which makes it clear that the UK ministers

"will take into account that the devolved administrations should have a role to play in meetings of the Council of Ministers at which substantive discussion is expected of matters likely to have a significant impact on their devolved responsibilities."

Paragraph B3.14 makes provision for

"Ministers from the devolved administrations speaking for the UK in Council".

It goes on to say that such ministers would speak

"with the full weight of the UK behind them, because the policy positions advanced will have been agreed among the UK interests."

I recognise that there is a wish to pursue conspiracy theories, but the European Union is one area of activity where there will be considerable gains for Scotland and for the country's commerce and industry. Next week, I will be in Brussels with a number of my colleagues to open Scotland House. I will hold a series of meetings with commissioners and we intend to keep in close touch with European affairs. The devolution settlement allows us to have a constitutional basis on which we can operate alongside the German Länder and the Spanish autonomous provinces.

It is a matter of political judgment, but I believe that there are considerable advantages in being a player in the big league and in having the weight of the United Kingdom behind us on agreed policy positions. If we were a new member—presumably after negotiations—we would be on the fringe of events. That matter is up for political discussion, but the decision was taken by people when they voted at the previous election and in the referendum.

The position is fully and honestly reflected in the concordats, not just the one on European Union matters, but the one that deals with financial assistance to industry. Paragraph C17, for example, states that

"Ministers and officials of the devolved administrations will be fully involved in discussions within the UK Government about the formulation of the UK's policy position on all issues which touch on financial assistance to industry."

The concordats are an honest and full response to and implementation of what we promised during the devolution debate and, as such, ought to be welcomed.

If we are ever in the position—although I do not anticipate that we shall be—where a UK Administration is flouting some of the specific provisions that are laid down in the concordats, the wisdom of having them written down and agreed will become apparent. The fact that the nationalists have suspicions about human nature—specifically, about the nature of United Kingdom politics—underlines the need for taking precautions. The provisions fulfil in every sense the agreements reached about co-operation and about ensuring the place of the Scottish Parliament Administration in the UK's European Councils. The nationalists may continue to argue the nationalist case, but I do not believe that they can do that if they apply honestly the criteria of the political settlement that lies behind these concordats.

On the international concordat—I will be very brief—the white paper made it clear that arrangements would be made for the Executive to play a part in the conduct of international negotiations. Anyone who reads that concordat will see that those arrangements are fully reflected.

I will say a word or two about the concordat on financial assistance. It is in Scotland's best interests to have this concordat in place. Its intention is to provide a framework that enables fair competition and value for money in our economic development work.

There have always been agreements—bases for understanding—and it is right that we should continue to have those. That sensible proposition is at the heart of this concordat. For example, no one wants one part of the UK to bid for an inward investor against another part of the UK with the consequence that both end up bidding for one firm—one incomer—in a way that may result in much larger financial commitments being entered into than are necessary. I do not think that that is sensible, or that we want that to happen.

I do not want to use the phrase ripped off, but there could be, for example, an auction house situation, where one could end up bidding for the same piece against a friend who was also there—one might feel silly at the end of that process. While that is a rather homely and simple analogy, I hope that it is one that will help the Opposition parties' understanding of the concordat.

I stress that there is a clearing house for the exchange of information where there is room for discussion both at official level and at bilateral level between ministers. Ultimately, there will be discussion at a formal ministerial committee. I think that that is a sensible approach. There is no question of dictation or of the imposition of vetoes. To use another lay term which I think is appropriate, if there should be a clash of interests, it is right that that should be exposed, examined and, I hope, settled. Of course, if it is not possible to settle such a clash, no doubt people will make their own way.

It is a sensible provision; it is not a threat or some sort of shackling. Indeed, I was rather entertained to hear the announcement that the European Union provisions were some form of constitutional shackling. That is a heavy description for sensible administrative arrangements and co-ordination. On shackling, I think that the consequences of the policies pursued by the nationalists would be a great deal more damaging and difficult.

This morning, I listened to an interview with Andrew Wilson on the radio. He said that our difficulty is that we were not able just to pour more money into social services. As you may remember, Presiding Officer, he was the gentleman who started the election campaign saying that there was no fiscal deficit. He ended up working it out on the back of an envelope and, 10 minutes later, had to say that he had got it wrong. There are great dangers in nationalist policies, but I do not think that there are dangers in sensible, orderly arrangements made between the parties who have to work together to arrive at the right solutions to Scotland's problems.

I briefly mentioned statistics earlier and, for completeness, I say that it is sensible that each Administration has the comparative information it needs on a consistent basis. The concordat on statistics will ensure that information at GB and UK levels can be maintained. One of Scotland's strengths is that we have a statistical base that is particularly strong, set against rural regions of England, for example. We want to supplement and strengthen that, particularly in areas where UK responsibilities impinge upon Scotland. We have a clear duty to supply relevant information to UK Administrations. Even if I give every allowance to the ingenuity of the nationalists, I cannot believe that anyone could disagree with that.

I hope that I have helped to clarify what these documents are—and, more important, what they are not. Provision is made for all the concordats to evolve and to be amended in the light of experience. However, as a first attempt at mapping out how relationships between the Executive and the UK Government should work, I think that they are comprehensive and, more important, I hope that they are comprehensible. Once this package of multilateral agreements has been endorsed by the Parliament, we can proceed with the publication of the bilateral concordats that will follow.

The documents have been put before the Parliament because we believe that they should be discussed. They provide a valuable and well-reasoned framework for managing our inter-Administration relationships within the UK. They contain soundly reasoned proposals for co-operation and mutual support and they fully meet the purpose for which they were designed—no more, no less.

These documents reflect precisely and honourably the white paper, the contents of the Scotland Act 1998 and the pledges given during the devolution debates by ministers. I hope that the Opposition will accept that we are considering the documents within that context—they are the delivery of the machinery that will make devolution work. As such, they make every possible sense and every proper provision for our future governance. They are working documents, they are aide-mémoires for officials and they reinforce and buttress the firm intent—the determination—of both Holyrood and Westminster to work together for the common good. They are part of the machinery that will allow Scotland's Parliament to work well with the rest of the United Kingdom and to serve Scotland's people. I commend them to the Parliament and I commend the memorandum of understanding and the supplementary agreements that are laid before the chamber by the Scottish Executive.

As a dying fall, Presiding Officer, I move, as amendment to motion S1M-186, after "Scottish Ministers and the", insert "Cabinet of the".

I hope that the amendment is acceptable to the chamber.

Photo of Donald Dewar Donald Dewar Labour

I move,

That the Parliament endorses the Memorandum of Understanding and supplementary agreements concluded between the United Kingdom Government, Scottish Ministers and the National Assembly for Wales.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

I was going to deal with Mr Swinney's point of order first. Is your point of order on the same issue, Mr Tosh?

Photo of Murray Tosh Murray Tosh Conservative

It would be better if you dealt with the previous point, Presiding Officer.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

Further to Mr Swinney's point of order, under rule 8.5.1 of the standing orders, I propose to accept the amendment in the name of Donald Dewar, which has to be put to the chamber and will be voted on at 5 o'clock. I have accepted that amendment, so the amendment and the motion are in play.

Mr Dewar, with great generosity, did not point out that the same mistake appears in the SNP amendment. I invite Mr Swinney, when he concludes his speech, to move the manuscript amendment that I have received in his and in others' names to insert the same words. [Interruption.] I beg your pardon. Alex Neil will move the SNP amendment. The drafting amendment must be moved first, before moving the amendment that is in today's business papers, so that, when we come to decision time at 5 o'clock, we will be in order.

Is that clear, Mr Tosh?

Photo of Murray Tosh Murray Tosh Conservative

I am very sorry that I gave way to you, Sir David, as that was precisely the point of order that I was going to raise. [Laughter.]

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

I always take note of the convener of the Procedures Committee.

Photo of Alex Neil Alex Neil Scottish National Party 10:08, 7 October 1999

Thank you, Presiding Officer. I give notice that I shall move the amendment and the amendment to the amendment to take account of the Executive's amendment to its motion. [Laughter.] We might be here from 5 pm until 5.30 pm tonight to vote on all these amendments.

I thank the First Minister for the very kind personal remarks that he made at the start of his speech.

Photo of Alex Neil Alex Neil Scottish National Party

I agree with the First Minister on one point only. A good-neighbour policy is the underlying principle that should govern the relationships between the peoples, the Parliaments and the Governments of the British isles. It is not in anyone's interest in Scotland, England, Ireland or Wales for there to be any rancour or resentment, acrimony or aggro between the peoples of these islands. We must treat one another with respect and dignity and co-operate where co-operation is essential and beneficial.

One of the reasons why I am in favour of independence is that I believe—and I disagree with the First Minister on this point—that, if Scotland had equal constitutional status with every other nation in Europe, that would enhance and improve our relationship both with London and with the other parts of the British isles. That debate is for another day, however.

Photo of Hugh Henry Hugh Henry Labour

Alex Neil has said that the concordats are heavily weighted towards London's interests—I presume that he means the UK Government's interests. Will he say whether the SNP believes that there are instances where London's interests would coincide with Scotland's, and, if so, will he specify those instances?

Photo of Alex Neil Alex Neil Scottish National Party

We represent Scotland's interests all the time, as I will explain.

Photo of Hugh Henry Hugh Henry Labour

That was not the question. I asked whether Mr Neil could envisage a situation in which the UK Government's interests—which he described as London's interests—coincided with Scotland's interests.

Photo of Alex Neil Alex Neil Scottish National Party

Absolutely. There are many instances of that, not least on international and European affairs. When Scotland becomes an independent member of the European Union, the United Nations and many other international bodies, there will be many times when we will not only vote with each other, but work together to provide a solution that is beneficial to Scotland, England, Wales, Ireland and every other nation in Europe. I am absolutely sure about that.

Today's debate is not about independence or devolution. It is about establishing whether the memorandum of understanding and the concordats achieve the objectives that the First Minister set out in his speech.

My first concern is how the Scottish Executive has treated—or to be more accurate, maltreated—the Parliament in the way in which the concordats have been drawn up. There is no doubt that the concordats have been drafted in London and in secrecy. At no time has the Parliament been given the opportunity to input its ideas on the agreements, nor have we been consulted on their content. Indeed, until last Friday, we had not even been informed about the subject areas that the concordats would cover. That flies in the face of the open-government policy that was supposed to be the foundation stone of the Parliament. As the Sunday Herald rightly said last week of the agreements:

"Surely this is a constitutional issue and therefore ought to be debated by all parties to ensure that the rules will endure."

I will not go into the spelling of "en-Dewar".

The concordats were drafted in London and amendments were then submitted by the Scottish Executive. The Scottish Parliament has seen neither the original drafts from London nor the Scottish Executive's proposed amendments. We do not know what those amendments were, or whether they were accepted or rejected; if they were rejected, we do not know why. This Parliament is entitled to know those things. Why has the Scottish Executive refused to answer even the most basic questions raised by members about the negotiations? I have tried to make my questions as simple as possible, but my question from, I think, 14 September—I asked for a list of the subject areas that the concordats would cover—met with what has become the Scottish Executive's usual reply, which is that the minister will reply as soon as possible. The minister has still not replied.

A particular complaint, which is probably shared across the chamber, concerns the way in which the Scottish Executive refused to give any advance copies of the concordats to members of this Parliament before the press conference that the First Minister and his close friend the Secretary of State for Scotland held at 11.30 am last Friday. Such a practice would be totally alien to the spirit, if not the letter, of the Executive's code on access to information; it is certainly contrary to both the spirit and the letter of the all-party agreement on how the Parliament should work that was reached through the constitutional steering group.

Photo of Murray Tosh Murray Tosh Conservative

In agreeing with Mr Neil in his criticism of how this matter was introduced into the public domain, I ask him to clarify his position. Does the Scottish National party believe that there should be no concordats, in principle, or does Mr Neil's argument lie with how matters have been handled?

Photo of Alex Neil Alex Neil Scottish National Party

We are quite happy that concordats have to exist, whether the situation is one of devolution or independence. We object to these particular concordats. I will discuss the detail of our criticisms in a moment.

To rub salt into the wound, the Parliament has not been, and will not be, given access to the minutes of the joint ministerial committee and other committees that are to be set up under the terms of the agreements. Earlier, Murray Tosh raised a valid point about the need for this Parliament to scrutinise the work of those committees. How can the Parliament scrutinise that work effectively if we do not have access to it? It is beyond belief that the Bank of England's monetary policy committee can publish its minutes, which concern sensitive issues such as interest and exchange rates, but the Parliament cannot have access to the minutes of the proposed joint ministerial committee. Parliament should insist on access to those minutes, other than where they deal with matters such as national security—if, indeed, they will deal with such matters.

I will turn to some matters of substance in the agreements. The way in which the joint ministerial committee is to be set up and operated exposes a fundamental flaw at the core of the agreements. UK ministers are to be charged with representing the interests of England as well as those of the UK as a whole, as paragraph 1 of the memorandum of understanding spells out. In other words, the English UK ministers will be expected to wear two hats—an English hat and a UK hat. The clear implication is that the UK's interests will be synonymous with those of England. I suggest that any politician—even one as skilled as the First Minister—who can successfully wear English and UK hats at the same time, and satisfy the demands of each, would make Houdini look positively arthritic.

I will give three examples of where this situation could and would create serious difficulties and unnecessary rancour and resentment, either north or south of the border. This is a two-way process; it is as easy for people in England to feel resentment over some aspects of the agreements as it is for people in Scotland.

The first example relates to something that took place at the stroke of a Westminster pen earlier this year—the transfer of 6,000 square miles of Scottish fishing waters from the jurisdiction of Scotland to that of England. The English interest would be for those waters to be transferred, whereas the Scottish interest would be for them to remain under Scottish jurisdiction. If there had been a ministerial committee, chaired by the English UK minister, and he overruled the majority view—as he would be entitled to do under these agreements, with the final arbiter being that great ex-Scotsman Tony Blair—that would turn what is supposed to be a concordat into a discordat. That would cause enormous resentment—in this case north of the border.

My second example concerns housing benefit reforms that will be announced in an English green paper on housing in the next six months or so. Huge differences exist between Scotland and England in the housing market, so some of the reforms that are proposed for England would be wholly inappropriate for Scotland. If the English UK minister chairing the joint ministerial committee on housing benefit reform forced through an English solution and tried to impose it on Scotland, that would also cause unnecessary rancour and resentment north of the border. It could also have a serious impact on the living standards of those people in Scotland who rely on housing benefit.

The third example relates to the Cubie committee on the future of student finances in Scotland. We read in last weekend's newspapers, as we have in previous weeks, that David Blunkett—who would be the English UK minister chairing a joint ministerial committee on student finance—is prepared to overrule the recommendations of the Cubie committee and of the Scottish Executive and the Scottish Parliament. In other words, the English minister could unilaterally overrule the express wishes of the Scottish people on this policy area. That situation is totally unacceptable to Scotland.

Of particular concern is the proposed overseas promotion committee, which—as the First Minister outlined—will oversee inward investment projects. It will be totally dominated by English UK ministers who will have the back-up of the Invest in Britain Bureau and the 10 new regional development agencies that will cover the whole of England. What chance does Locate in Scotland have against all those bodies?

Photo of Donald Dewar Donald Dewar Labour

I was not going to bother to interrupt, but Mr Neil has totally misunderstood the nature of the overseas promotion committee and the nature of the joint ministerial committee. There is no question of the chair overruling a majority—that view indicates a total persecution complex that is based on political prejudice. I suggest that Mr Neil withdraws what he has said.

Photo of Alex Neil Alex Neil Scottish National Party

The First Minister might not have read the document in detail, but it says on almost every page that the UK Government will have the last word on everything. That means that it can overrule anything that this Parliament decides. The document emphasises the fact that the Westminster Parliament can legislate even on devolved matters. I do not have a persecution complex; I think that the jerseys of the people of Scotland have been sold.

Photo of Alex Neil Alex Neil Scottish National Party

Allow me to quote from the Sunday Herald —which I know will be a favourite newspaper of the First Minister. It says that the final result of those agreements

"has been a triumph for Westminster as having the power to legislate on any issue whether devolved or not, so it is quite clear that the Concordats repeatedly rub the nose of Scotland's devolved Parliament into the ground."

That comes from a newspaper that believes in devolution and not in independence.

Photo of Donald Dewar Donald Dewar Labour

Alex Neil is making exactly the mistake that I predicted he would make. He is right that the UK Parliament can, ultimately, legislate. We know that it has passed an act of Parliament that set up a devolved Scottish Parliament with its own terms of reference and its own areas of responsibility. The UK Parliament will not use its theoretical powers to overrule the decisions that the Scottish Parliament makes in its areas of responsibility.

His interpretation of the joint ministerial committee—and the scrutiny process for exchange of information and for bringing order to inward investment policy—is a pastiche and a distortion. It is a collection of prejudiced statements that bear no relation to the facts. If what he said was true, we would hear strong words from Locate in Scotland, but we have not.

Photo of Alex Neil Alex Neil Scottish National Party

First, Locate in Scotland is not entitled to make political comments and, secondly, this issue is not theoretical. The Westminster Parliament has the power to overrule the Scottish Executive and the Scottish Parliament—that is a matter of law. The First Minister cannot make a commitment that any future Administration in London will not legislate on devolved matters, although he may argue that the current Government would not do that.

Photo of Alex Neil Alex Neil Scottish National Party

I have given way to the First Minister rather a lot, but I will do so again.

Photo of Donald Dewar Donald Dewar Labour

Does not Mr Neil realise that the fact that we have a devolution settlement invalidates all that he says? He is entitled to his view, but we in Scotland voted for a devolution settlement. The nature of that settlement is that the United Kingdom Parliament, which contains a full representation of Scottish members, remains sovereign. Mr Neil might not like that, but to say that it constitutes a fatal flaw in the concordats is illogical nonsense.

Photo of Alex Neil Alex Neil Scottish National Party

There is a fatal flaw if there is to be genuine devolution.

Let me make some suggestions about the joint ministerial committee. Why should not we recognise the conflict that could result from asking one minister to represent both English and UK interests? Why do we not insist that, on the ministerial committee, the majority view of the four devolved Administrations rather than the view of the English minister should be the UK view? Why do we not insist that the chairmanship be rotated among the four Administrations? Why do we not insist that the subject committees be chaired by people from the four Administrations?

There is nothing anti-devolutionary in those suggestions. To do those things would give a clear signal that there had been genuine devolution from London, rather than the centralised control freakery represented in these documents. The documents are more akin to diktats than to genuine concordats. They have been drawn up not jointly, but unilaterally by the UK Government, as Mr Dewar has said.

The agreements are totally unacceptable to the people of Scotland. When the Scottish National party is elected to form the Administration in this Parliament, it will renegotiate the concordats. The concordats do not live up to the needs or aspirations of the Scottish people. Our simple message to Donald Dewar and to Tony Blair is: away hame and think again.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

Mr Neil, will you move your drafting amendment and the amendment?

Photo of Alex Neil Alex Neil Scottish National Party

Thank you, Presiding Officer. I move, as an amendment to amendment S1M-186.1, insert "Cabinet of the" after "Scottish Ministers and the".

I also move the amendment to motion S1M-186, in the name of the First Minister, to leave out from "endorses" to end and insert:

"calls upon the Scottish Executive to re-negotiate the Memorandum of Understanding and supplementary agreements concluded between the United Kingdom Government, Scottish Ministers and the National Assembly of Wales in order to protect the interests of the Scottish people and ensure that no additional constraints are placed on the powers of the Scottish Parliament."

Photo of Annabel Goldie Annabel Goldie Conservative 10:25, 7 October 1999

You will be relieved to hear, Sir David, that I will not be moving anything—

Photo of Annabel Goldie Annabel Goldie Conservative

I am delighted to report to Mrs Ewing that my spies tell me otherwise.

Mr Neil has legitimately made the position of the nationalists transparent, as he had to. That position is based entirely on an independence agenda and so I understand why it is difficult for him to embrace the spirit of the concordats and the memorandum of understanding.

I say to the First Minister that the position of the Conservatives is also transparent: we are a party that is committed to the United Kingdom, but we recognise within the devolved settlement the need for a mechanism to regulate the administrative issues that are bound to arise in the creation of a Parliament such as this.

We welcome the composition and the publication of the memorandum of understanding and the concordats as they are contained in the annexes. However, Mr Dewar, we have concerns and it is right that we should articulate them. The document is, for example, optimistically called a memorandum of understanding. I might suggest, Mr Dewar—

Photo of Annabel Goldie Annabel Goldie Conservative

I beg your pardon, Sir David.

I suggest to Mr Dewar that if proper regard for parliamentary protocol is not shown, and if there is not reasonable dissemination of information, this document is in grave danger of ending up a memorandum of misunderstanding. It will be a memorandum of misunderstanding because of the genuine paucity of opportunity to consider the content of the document. The Conservatives want the concordats to work—we want them to provide a reliable and stable framework for civilised liaison and a conduit of views. We want them to be a sound structure for determining what the administrative difficulties are.

We have genuine concerns, however. I find myself sharing common ground with Mr Neil— [Interruption.]

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

Order. We cannot have muttering in other parts of the chamber during a speech.

Photo of Annabel Goldie Annabel Goldie Conservative

Someone seems to have come to life on the back benches.

I share common ground with Mr Neil in that I feel that the Executive has shown contempt for Parliament in its decision to unveil the concordats at a press conference. If this Parliament is good enough for Mr McLeish to give a ministerial statement on Continental Tyres Ltd to, and if it is good enough for Mr McConnell to present his expenditure statement to, surely it is good enough for the First Minister to come to first to disclose and publicise the memorandum of understanding and the concordats.

Photo of John Swinney John Swinney Scottish National Party

Does Miss Goldie agree that Parliament could have a greater role in the process of arriving at the concordats and does she further agree that the fact that they were announced to the press first was a gross discourtesy to this Parliament? Should not we have been consulted earlier on the issues involved? That would have meant that some of the suggestions that Mr Neil made on the joint ministerial committee and the chairing of that committee could have been incorporated in the dialogue that the First Minister had with the UK Government on that subject.

Photo of Annabel Goldie Annabel Goldie Conservative

I thank Mr Swinney for that comment. I was going to expand on that in my remarks.

The underlying approach of the Conservatives in this Parliament is that we want the Parliament to work. Rather than the covertness, furtiveness and constant shadow of secrecy with which the Executive is tainted, we should have a Parliament that is graced by transparency, visibility and honesty. Time and again we see behaviour that is redolent of dominance and we see furtive retention of information. That may be uncomfortable for the Executive to acknowledge, Mr Dewar, but that is how many other members view the behaviour of the Executive.

There is a spirit of co-operation in this chamber on this subject and a desire—at least among the parties that believe in the United Kingdom—for the concordats to work. Given that, it is ironic that an opportunity for consideration, discussion or even disclosure of some of what was proposed in the document was denied to us. If that information had been made available, Mr Dewar, the chances are that the memorandum would have been a better document.

Photo of Donald Dewar Donald Dewar Labour

I am interested to hear that. I understand that line of argument; it is a predictable one. However, can Annabel Goldie tell me of any instance in British politics over the past 20 years when administrative documents of this kind have been formalised in the way that she is suggesting? Does she realise that she is suggesting that every Parliament that is involved in this—except the Northern Ireland one, which would have to come in later to ask for changes—would need to have the right to make their amendments, as the concordats are quadrilateral? That would mean, above all, that the Westminster Parliament would have to debate, amend and insist on changes. Is that really what she is suggesting for what is an administrative document—a working guide between departments? If she is suggesting that there is some sort of deprivation of rights, will she tell me when those rights have ever existed?

Photo of Annabel Goldie Annabel Goldie Conservative

Within the past 20 years, Mr Dewar, I am not aware that we have ever had to consider the regulation of relationships between two Parliaments in the United Kingdom. I thought that that was why this Parliament was an innovation—why it was an historic creation. That is why, Mr Dewar, this is unprecedented.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

Order. I know that the two members are sitting close together, but we must have a debate through the Presiding Officer. This cosy relationship has got to stop.

Photo of Annabel Goldie Annabel Goldie Conservative

I apologise, Sir David. My natural amity for the First Minister will have to become slightly more obscure.

In the spirit of wanting the memorandum to succeed, I feel that it would have been helpful for us to have had some indication of the draft contents. We accept that there might have been a limit on the efficacy or completeness with which we, as a devolved Parliament, could have regarded these documents, but a little information, and the facility to contribute ideas, would have been both healthy and helpful.

We know that there will be additional concordats; what we have here is just the first batch. I hope that there will be an opportunity— and I urge the Executive to consider this—for some disclosure of what those concordats are likely to govern and embrace. If the subject is relevant to our own parliamentary committees, we might want to make some comment, suggestion or proposal—not to be didactic or binding, or to have legal effect, but simply to be helpful.

I was interested in what both Mr Neil and Mr Swinney said about the assertion that the memorandum is not legally binding. Some play was made of Mr McLeish's contribution to the debate in the House of Commons. I, too, have a slight concern. An authoritative view was expressed in the House of Lords by the English Solicitor-General on second reading of the Government of Wales Bill. Lord Falconer made a good point, saying of the concordats:

"They will not take the form of binding contracts; they will not take the form of statutory documents, but it may well be the case that they will create a legitimate expectation of consultation. For instance, if one party to a concordat suddenly ceased to consult the other in accordance with the concordat, the result might be that its decisions could be challenged by way of judicial review, so it is wrong to say that there will be no legal underpinning to these concordats."—[Official Report, House of Lords, 21 April 1998; Vol 588, c 1131.]

My concern is that we are straying on to a potential law-making facility and that we may be doing so through the back door. I do not think that that is healthy. If, in Scotland, a potential investor felt that his or her rights had been ignored or disregarded by the Executive, in relation to the directions within the concordats—it might be a lack of consultation or whatever—that investor might seek judicial review in the Court of Session. His case might be founded on the alleged lack of consultation or some other neglect or failure by the Executive in relation to the concordats. I am concerned that this Parliament has not had an opportunity to examine in detail the text of these documents. I do not want to labour the point; I simply make it and observe that it is one issue over which the Conservatives have concerns.

The joint ministerial committee seems to have been conceived with good intent, but I am not sure just how it will operate. According to the memorandum of understanding, the joint ministerial committee is to carry out various tasks. Its terms of reference are to consider various matters, to keep arrangements for liaison and to consider disputes. I am not quite sure about the committee's status. I am not sure whether it is consultative or executive; perhaps it is meant to be neither. The Executive has a duty to this Parliament to clarify how it regards the status and structure of that committee. It is important for us to know precisely how the committee is meant to operate.

There is a feeling—unworthy, perhaps—that the committee's status may deliberately have been made vague. It may be a deliberate fudge to deal with Governments of different colours in different parts of the United Kingdom. If the Conservatives were in government in the United Kingdom and in Scotland, those fears would be groundless. However, if there are to be different Administrations in different parts of the United Kingdom, there may be difficulties in the way in which the joint ministerial committee functions.

Photo of Alex Neil Alex Neil Scottish National Party

Will Annabel recommend to her colleagues that, if they ever again form the Administration in London, they rewrite the concordats to ensure that we have that proper and fair representation the lack of which she is criticising?

Photo of Annabel Goldie Annabel Goldie Conservative

Mr Neil tempts me, as he often does. [Laughter.] Suffice it to say, I expect that these concordats are meant to be—and have to be—flexible in content and intent. Without a crystal ball, I am unable to say what exactly a Conservative Administration would do, but I shall bear in mind Alex Neil's helpful suggestion. [Interruption.] He has now made me lose my bit of paper.

Photo of Annabel Goldie Annabel Goldie Conservative

The word riveting springs to mind.

The Conservative party welcomes the spirit of the memorandum and goes so far as to applaud what has been produced. However, that in no way minimises the reservations and misgivings that I have expressed about the way in which the matter has been handled. We see no reason why this Parliament should not be party to the intended content of future additional concordats. That would be both helpful and healthy.

In conclusion, I thank Mr Dewar for his contribution to this debate. The Executive will be tested on how it behaves and on what it does rather than on what it constantly says about transparency, visibility, honesty and all the rest. That test has not, as yet, been discharged. [Applause.]

Photo of Patricia Ferguson Patricia Ferguson Labour

I remind members who want to participate in the debate that they should press their request-to-speak buttons now. There will be a four-minute limit on speeches.

Photo of George Lyon George Lyon Liberal Democrat 10:39, 7 October 1999

On behalf of the Scottish Liberal Democrats, I welcome the publication of the concordats, which lay out the details of the relationship between the Parliaments of the United Kingdom, including Northern Ireland. Of course, we hope that at some stage there will be a parliament in Northern Ireland that can take part in that relationship and use the concordats.

The concordats establish once and for all that the relationship in question is between Parliaments—minister to minister and department to department. The document clearly states that there is no role in the relationship for the secretaries of state, except to promote good relations between the UK Government and the respective devolved bodies.

Photo of John Swinney John Swinney Scottish National Party

Mr Lyon said that the document describes a relationship between Parliaments. The motion that we are asked to support today makes absolutely no mention of the involvement of the Scottish Parliament, other than to ask us to endorse a document that empowers Scottish ministers to make particular representations. I am totally confused by his line of argument. Will he explain what he means?

Photo of George Lyon George Lyon Liberal Democrat

As I said, the document concerns the relationship between the Executive in this Parliament and Executives in other Parliaments in the United Kingdom.

Coming back to the role of the Secretary of State for Scotland—

Photo of George Lyon George Lyon Liberal Democrat

I have already given way once and I have only four minutes in which to make my speech.

The question remains as to whether we still need 130 civil servants to deliver the secretary of state's role of promoting good relations between the Administrations, and members on all sides of the chamber are concerned about that.

Representation in Europe is important for some of our primary industries, such as agriculture and fishing. The key priority is not who sits at the ministerial table; rather, it concerns input into the formulation of UK policy, and the document provides a clearly defined framework for Scottish ministers to play a role in that process.

Photo of George Lyon George Lyon Liberal Democrat

I have only four minutes, but I will accept one intervention.

Photo of Bruce Crawford Bruce Crawford Scottish National Party

How many times have Scottish ministers taken the lead in meetings of the Council of Ministers after agreement with other Whitehall departments in areas of real substance?

Photo of George Lyon George Lyon Liberal Democrat

The key issue is the UK policy position, which must reflect Scottish objectives.

Photo of George Lyon George Lyon Liberal Democrat

That is the answer to the question; the important thing is the way in which UK policy is formulated and developed. Let us not forget that the UK has 10 votes at the table—10 votes out of 87 and 10 votes that go towards a minority blocking position of 26. Compared with the voting power of some of the smaller nations that start with three votes, we have a significant and powerful position at the Council of Ministers.

Photo of George Lyon George Lyon Liberal Democrat

I have only four minutes and have already take two interceptions.

Photo of George Lyon George Lyon Liberal Democrat

I have one more point about the relationship with Brussels. The UK representative office is the key organisation in Brussels for delivering UK policy, controlling the way in which we engage with the European Commission and with other countries. It is vital that Scotland House officials should be fully integrated into the UK representative office, and I would like the minister to detail how that relationship will work. Those who have been involved in the process believe that the political representation should have been based inside the UK representative office. That office is vital in delivering the views of the Scottish ministers and the UK policy position in Europe.

The Scottish Liberal Democrats agree that it is sensible to set up a ministerial group to exchange information about inward investment. It is vital that, if various parts of the UK are bidding for big, mobile investment projects, there should be regular exchanges of information between them. We do not want a situation in which one part of the UK is played off against the other and we end up in a bidding war. That would benefit no one, least of all the taxpayer.

Who is to decide on the assistance that Locate in Scotland should offer to such a mobile investment project? Once the concordats and the consultation process through the committee structure are working, and when Scottish ministers have full knowledge of which other areas of the UK are involved in bidding for a project, it is up to them to take a decision as to whether it is wise to up the bidding. If the Scottish ministers get it wrong, the Finance Committee and the Audit Committee will scrutinise the matter and call them to account. That is what devolved government is all about—taking decisions based on what is best for Scotland.

Photo of Des McNulty Des McNulty Labour 10:45, 7 October 1999

Like George Lyon, I welcome the opportunity to discuss the concordats, and I appreciate his comments on particular aspects of them.

Before I go on to do the same, however, I want to mention the contributions from Alex Neil and Annabel Goldie. They could have talked about the specifics of the concordats, but Alex Neil's speech seemed to be based on the premise that we are not partners in the UK. He talked as if the only mechanism through which the interests of Scotland could be represented was through this Parliament. That is not the case. We have 72 Scottish MPs at the UK Parliament at Westminster, and a number of UK ministers are Scottish MPs.

Photo of Des McNulty Des McNulty Labour

Our interests are represented through that process as they are represented by the Scottish Executive. The real issue is how we can manage and co-ordinate that representation effectively.

In response to what Annabel said, it seems to me that, rather than being a secret process, the concordats are a demonstration of transparency. The documents set out the way in which decisions will be arrived at and the administrative arrangements for taking issues forward.

Photo of Annabel Goldie Annabel Goldie Conservative

Mr McNulty is quite right in saying that we now have the concordats and are having a debate about them. That is what Mr Dewar said in his speech, but I still have some concerns. What does Mr McNulty suggest should be done if members were to say that we disagree with most of the content of all the concordats? The concordats are printed, published and agreed. Despite the terms of the motion that is before Parliament today, a vote in favour of the concordats would be very much a cosmetic endorsement.

Photo of Des McNulty Des McNulty Labour

If there are substantive areas of disagreement, let us identify them. It is my view that, if there were any such problems, we could have an on-going debate about them. However, I understand the concordats to be a mechanism through which issues can be discussed and resolved at an administrative level, so that policy can be progressed effectively in a transparent way that allows people to understand what is going on and what the rights and responsibilities of different agents will be.

Photo of Murray Tosh Murray Tosh Conservative

I am sure that we understand that point, but there is a broader question that goes beyond that. In the House of Commons, there is a clear mechanism for on-going scrutiny but, in this Parliament, there is not. The operation of the concordats might be looked at by committees, but there is no committee with a remit to scrutinise the on-going work of this particular area of government.

Photo of Des McNulty Des McNulty Labour

Mr Tosh's point is unreasonable. The committees on which I sit would find it difficult to do their work if they were in the position that he describes. Mr Tosh and I are both members of the Transport and the Environment Committee. If a transport issue were raised in the context of a concordat, we would not want it to be remitted to another committee dealing specifically with concordats; we would want to deal with it within our own remit. I suspect that members of other committees would take the same view. We must identify the best way of taking issues forward, whether in relation to inward investment or to any other matters that will come before the Parliament.

Photo of Christine Grahame Christine Grahame Scottish National Party

I hear what Mr McNulty says about transparency. He says that there should be accountability and that Parliament should be able to scrutinise the operation of the concordats. How on earth are we to do that? On page 8 of the memorandum of understanding, under the heading "Confidentiality and Public Statements", paragraph A1.11 states:

"The proceedings of each meeting of the JMC will be regarded as confidential by the participants, in order to permit free and candid discussion. However, the holding of the JMC meetings may be made known publicly, and there may be occasions on which the Committee will wish to issue a public statement on the outcome of its discussions."

If only the holding of meetings may be made known publicly, how on earth can such arrangements allow us to scrutinise anything?

Photo of Des McNulty Des McNulty Labour

The concordats establish a terrain or format on the basis of which different kinds of issues will be handled, whether the co-ordination of European Union policy, investment in industry or other subjects that form the basis of future concordats. They establish the basis on which the four arms of Government within the UK will co-operate.

The document sets out a fundamental set of operating procedures through which Scottish and UK Governments will carry out their business. Issues of policy, if appropriate, will come here, to a committee or to the chamber. The Executive is accountable to the Parliament for how policy matters are handled—that is a clear principle. There is no subterfuge here. It is a clear process whereby issues will be dealt with by the Administration; it will enhance transparency and make clear who has responsibility for what and how the decisions are made. It is open to us to discuss any relevant policy issues in the Parliament.

Photo of Margaret Ewing Margaret Ewing Scottish National Party 10:51, 7 October 1999

I have four minutes to cover 40 pages, when I could spend 40 minutes on each page of the memorandum. Des McNulty clearly has not read or understood the implications of many aspects of it. I address my remarks to all MSPs because it raises issues of democracy and of the responsibilities placed on us by our electorate.

When I first read the document, I was incandescent with rage. That is a favourite word of Tony Blair's—he is always incandescent about something or other. If anyone suffers from insomnia, they should take the Maastricht treaty or the Schengen agreement to read in bed and they will go to sleep, but do not take this document. Anyone who cares about the development of democracy in this Parliament and the nation of Scotland should read every single word of the memorandum of understanding.

I went back to the dictionary: concordat is supposed to mean a pact or an agreement reached in harmony. Like Alex Neil, I cannot see harmony anywhere in the document. Look at paragraph 13 on page 3. It should not have come as a surprise to me, having sat through many hours discussing the Scotland Act 1998, but it says:

"The United Kingdom Parliament retains authority to legislate on any issue, whether devolved or not."

That is a critical sentence. I say to every member of this Parliament: tak tent of that phrase.


They are all up.

Photo of Margaret Ewing Margaret Ewing Scottish National Party

They all get up together—come on. Why did all of us—at least SNP members—go out and campaign for a yes result in the referendum? [MEMBERS : "Give way."] We campaigned to be elected to this Parliament—are we going to be ciphers while another organisation holds the chains?

Photo of Donald Dewar Donald Dewar Labour

Has Margaret Ewing read the Scotland Act 1998? Could she explain to me what is in the sentence she has read out that is not in that act, which she voted for?

Photo of Margaret Ewing Margaret Ewing Scottish National Party

If Donald had listened to me, he would have heard me say that it should not have come as a surprise, because the phrase reflects the act. What Des McNulty and others have shown is a failure to realise that chains are being placed on the Parliament. How can we call ourselves a Parliament when there are constant references not to the members of the Scottish Parliament but to the Administration? How are we a genuine Parliament, when we see constant references to the role of officials and not to elected members? I am concerned that the Parliament is consistently down-banded throughout the memorandum.

I note that the First Minister has left the chamber, but he does that regularly. He and I are old pals from Glasgow University, and we know how we feel about each other's views. How are we a genuine Parliament when we look at the demands in a European context? Section B3.14 states:

"That the role of Ministers and officials from the devolved administrations will be to support and advance the single negotiating line which they will have played a part in developing."

Tell that to our fishermen, to our farmers, to our pensioners. We do not want a bit part in such discussions—the Parliament should have a leading role.

Everyone in the Parliament today has a responsibility when they cast their vote to ask themselves: are we voting for democracy in Scotland or for the chains of Westminster that will bind us? I do not believe that the people of Scotland asked us to come here to be puppets of another organisation. The only consolation that I can find is in paragraph 28 on page 6, where it says,

"there may be a need from time to time for some adjustment to be made".

I give fair notice that adjustments will have to be made. They will be made through the democratic aspirations of the people. That is our responsibility—those who have sought election must repay the voters with the right to develop the democracy of Scotland.

Photo of Elaine Thomson Elaine Thomson Labour 10:57, 7 October 1999

I welcome the memorandum of understanding, the agreement on the joint ministerial committee and the four multilateral concordats. Margaret Ewing and others have happily quoted from paragraph 13. I refer members to words later in that paragraph, stating that the UK Parliament

"would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature."

It clearly lays out the framework—

Photo of Bruce Crawford Bruce Crawford Scottish National Party

Will the member provide us with a definition of "normally"?

Photo of Elaine Thomson Elaine Thomson Labour

Most people understand "normal" to mean usual practice. The memorandum and the concordats lay the basis for a good working relationship between the UK Government and the Parliament. We are in a new situation with a Scottish Parliament. For things to continue to work effectively when change happens always requires thought and discussion on the new working processes and how different organisations will communicate. That is laid out in the document, which sets out and underpins how the Parliaments will deal with each other at different levels, including ministers, the Parliament and civil service departments.

It was always going to be the case that devolved matters would impact on reserved areas and vice versa. A mechanism must be in place to deal with that. UK bodies must have guidelines to help them deal with the new devolved bodies while continuing to work with Westminster.

A number of clear principles underpin the memorandum and concordats: mutual respect, trust and confidence in each other. It is recognised that good communication is essential for effective working, that issues should be discussed in good time, that others' views need to be considered and suitable arrangements for joint working made.

Photo of Margo MacDonald Margo MacDonald Independent

I very much agree with the notion of mutual respect in concordats—it is essential. Does the member agree with Alex Neil's suggestion of a rotating chairmanship of the ministerial council, with different lead ministers from the different Administrations within the British Isles?

Photo of Elaine Thomson Elaine Thomson Labour

No, I do not.

More can be achieved through co-operation, and the benefits of working together, where appropriate, will be greater.

Also required for effective communication is free and open access to information, which is produced in a coherent, reliable and consistent manner. That must be one of the keys of better policy making. It makes sense that when statistical data, for example, are collected, they are collected once and then made available to everyone.

In the areas that are covered by the concordats, it is vital that there is a clear understanding of how the concordats will operate and of the need for flexibility to operate effectively in fluid situations, for example, in negotiations with the European Union. UK policy objectives are best achieved through having a single, clear UK policy.

These are working documents: they are not set in stone for ever. They are dynamic documents and will continue to change. The working relationship between the Parliaments will continue to change, and the concordats will change with that. The documents that we are discussing today provide a clear basis for working in the immediate future.

Photo of Murray Tosh Murray Tosh Conservative 11:02, 7 October 1999

I agree with two points that Alex Neil made. I also feel, as does the Conservative party, that the way in which the concordats were launched was a discourtesy to this Parliament. It was not appropriate to launch those documents at a press conference, especially when that occurred in the context of a number of important announcements having been made to the media rather than to the Parliament during the past couple of months. The Parliament must examine that.

A second concern has bubbled up during the debate, about how the operation of the concordats will be scrutinised in future. The First Minister said that the availability of the concordats is an innovation because documents of that nature have never been in the public domain before. He also said that the level of scrutiny—which in the past would have meant the relevant House of Commons committee scrutinising such work—has not existed before because we are in a wholly new context. That is the point: we are in a wholly new context. The concordats are different from the concordats and agreements between UK ministries: they are concordats between two Executives. How the concordats operate, and how they are seen to operate, is important. With regard to how the concordats will work, much more needs to be thought about, debated and concluded.

I appreciate the spirit of the First Minister's answer, that essentially the committees of this Parliament will be able to scrutinise aspects of the working of the concordats, but I restate my concern that there might not be a procedure that is sufficient for a review of the working of the concordats, and those which are yet to come, in their totality. The remit appears to go beyond that of a single committee, or even a series of disaggregated committees. We will have to address some important procedural points.

Having agreed with the Opposition case on those points, I distance myself and the Scottish Conservatives from much that has been said this morning, because it is clear that a huge miasma of misunderstanding, or misrepresentation, has surrounded the debate. For example, George Lyon, who is no longer here, assured us that these were concordats between Parliaments, when manifestly they are not: they are concordats between Executives. The role of Parliament in that process is how it scrutinises what is, effectively, an Executive relationship. I am afraid that George Lyon did not enhance his ministerial prospects with his offering.

Alex Neil was guilty of much the same mistake. The specific instances that he gave of where the relationship had broken down, and could break down in future, appeared all to relate to legislative, and not Executive, areas. For example, the order relating to fishing boundaries was dealt with in Westminster by a committee and by members of Parliament in a vote; it was not an Executive action. The reform of the housing benefit regime in the coming year or so will be a matter for legislation. It is an important political issue, and Alex made some telling points about it with regard to the difference between Scotland and the rest of the UK, but any action will not be Executive action, so it will not be covered by the concordats: it will be covered by debate in both Parliaments.

In addition, Alex Neil was wrong on the issue of the Cubie committee, as that matter relates to a legislative rather than Executive area.

Photo of Alex Neil Alex Neil Scottish National Party

Surely the key point is that legislation is usually initiated by the Administrations. Therefore, if the Administrations between them agree on a legislative priority, such as fishing rights, which results in legislation, the process starts with the Administrations.

Photo of Murray Tosh Murray Tosh Conservative

Yes, but the concordats are not designed to govern how legislation is handled in either Parliament, or between the two. The concordats exist to handle Executive business, much of which is routine and mundane. The specific examples that Alex Neil gave are all first-rate political issues that are debated in Parliaments. Executives may propose legislation, but Parliaments pass it. It will be the role of this Parliament to take the decisions that he alluded to in concert with the Westminster Parliament, and there might be scope for some form of parliamentary concordat, but it is unlikely that we will be looking to agree on the details of legislation.

A huge amount of emotive rubbish has poured from the SNP this morning. For example, Margaret Ewing clearly did not understand what she supported when she supported the devolution set-up. When she campaigned around the country with as much emotion and passion as she showed this morning, she was campaigning for an act that had in it a clear statement that the UK legislature retained overall responsibility. How could it be different within a devolved context? I quite understand that the nationalists come from a different direction when they talk about independence, but they campaigned for devolution and that is the logic of devolution.

I regard it as an absurd expectation that at some future date the Westminster Government will start legislating willy-nilly over the Scottish Parliament in every aspect of our affairs. That is a ludicrous spectacle to hold out before the people of Scotland. It is scaremongering. It points to the fundamental reason why the Conservative party was so suspicious of the principle of devolution, which is that we have always seen this as an area that opened up an avenue to the Scottish nationalists to divide, disrupt, misrepresent and scaremonger in the way that they have done this morning. We have accepted the democratic decision of the people of this country. We support devolution and we are committed to making it work. It has been made clear this morning that the SNP does not have that commitment and that it remains the wrecker still.

Photo of Bruce Crawford Bruce Crawford Scottish National Party 11:08, 7 October 1999

Now we see the real unholy alliance in the chamber.

The document is grandly entitled memorandum of understanding, but it is more like a memorandum of lack of understanding. The reality is that this document is about the UK Government's paranoia about the devolution settlement.

The First Minister talked about suspicions. Yes, we are suspicious, Donald. We have every right to be: we have learned some hard lessons about the way Labour does its business. We will continue to be suspicious.

The document says much about the internal fears and insecurities of the UK Government machinery, which is fed by Blair's well-documented centralist and control tendencies. It clearly exposes the fact that the current relationship between the Scottish Executive and the UK Government is in considerable difficulty. This is a contract for a marriage that is based on mistrust and the fear that the Scottish Executive might be tempted to play away from home.

Let us examine the lack of understanding on European policy and Scotland's particular needs. Murray, those are areas in which legislation will be produced that affects this Parliament but on which we will have no say.

In January 1997, Robin Cook was recorded as saying:

"Labour's plans for devolution will create a Minister for European affairs in a Scottish Administration".

The reality is different. We have no such minister and it is the intention of this memo to ensure that the Executive is involved only in EU policy matters for which responsibility has been devolved.

Scotland's distinctive voice must be heard on matters outside the confines of the Scotland Act 1998. Scotland's distinctive voice must be heard on issues affecting the Europe of the future, such as enlargement of the Community, the single currency, European defence matters and aid provided to third-world countries. I would argue that all those areas touch on matters that fall within the Executive's remit. I will be grateful if the First Minister will confirm, during his winding-up, if the document refers to the Executive being able to touch on those matters.

Photo of Murray Tosh Murray Tosh Conservative

Is it not clear that this Parliament has the competence to discuss non-devolved matters, including defence and the other areas that Bruce Crawford mentioned? He can hardly be suggesting, in the context of a devolved settlement, that this Parliament will legislate in such areas.

Photo of Bruce Crawford Bruce Crawford Scottish National Party

Mr Tosh has obviously not read the document, because it is about a contract between two Executives, not between the Parliaments. I am specifically referring to this document.

Photo of Jim Wallace Jim Wallace Liberal Democrat

I refer Mr Crawford to paragraph 15 of the memorandum of understanding, which states:

"The devolved legislatures will be entitled to debate non-devolved matters, but the devolved executives will encourage each devolved legislature to bear in mind the responsibility of the UK Parliament in these matters."

The document, which Mr Crawford claims to have read, states that this Parliament can debate non-devolved matters.

Photo of Bruce Crawford Bruce Crawford Scottish National Party

Can the Executive give me an assurance that on the joint ministerial committee, Scottish ministers will raise issues on defence, foreign affairs and aid to third-world countries in any discussions that touch on those matters and press hard on Scotland's behalf?

Photo of Donald Dewar Donald Dewar Labour

Mr Crawford started talking about European Union policy. I might as well deal with the question he raised. I draw his attention to paragraph B1.3 in the document, which I am sure he has read. It states:

"However, the UK Government wishes to involve the Scottish Executive as directly and fully as possible in decision making on EU matters which touch on devolved areas (including non-devolved matters which impact on devolved areas and non-devolved matters which will have a distinctive impact of importance in Scotland)."

Those are all matters on which we can, if we are so minded, engage in discussion and policy formulation in the European Union context.

Photo of Bruce Crawford Bruce Crawford Scottish National Party

I will allow the First Minister to give me the assurance that this Parliament will be allowed to be involved in those discussions on the matters that I have outlined.

We do not have to look far in this memo for the gagging orders and the control tendencies that expose the insecurities of the current UK Government. They are perhaps the most polite gagging orders that we will ever see. It says that the role of ministers and

"officials of the devolved administrations will be to support and advance the single UK negotiating line."

Margo made a good point: under the cloak of mutual respect, the document talks of

"the confidentiality of those discussions and the adherence to the resultant UK line,"

That may be polite language, but the message is blunt and clear. When big issues come along and Scotland's needs differ from the rest of the UK, sit doon, keep quiet and dae whit ye're telt.

Perhaps the First Minister will tell me, if this is not also ridiculous, the number of occasions on which Scotland has been allowed to take the lead on a substantive issue in the EU Council of Ministers.

Thankfully, this memo has no legal foundation and it is not binding on future Executives. Otherwise, history would show it to be a document infamous in nature and working against the best interests of the Scottish people. Its saving grace is that it can be swept away when the electorate dumps the current Executive.

Photo of John McAllion John McAllion Labour 11:14, 7 October 1999

Mr Crawford reminded me of that wonderful phrase from the "Carry On" films: infamy, infamy, they have all got it in for me. That is the spirit in which we should take the debate so far. There has been a great deal of exaggeration, especially from the SNP.

I was genuinely surprised by the flourish with which Alex Neil brought his speech to an end. Let the word go forth from this Mound that if the SNP wins the next general election and forms the Government of Scotland, it will renegotiate the devolution contracts. Not set Scotland free, not declare independence, but renegotiate the devolution concordats.

It appears that the war over the national question, which has divided Scotland for most of the 20th century, is over and that home rule has won. I welcome the SNP back to the home rule movement, which it left more than 60 years ago.

Photo of John McAllion John McAllion Labour

I am not giving way, particularly to people like you.

The second point was that the First Minister, big Donald, warned us against conspiracy theories. Normally I am a great believer in conspiracy theories. After 22 years in the Labour party, I have good reason to be. If I may borrow somebody's phrase, I have scars on my back to prove it. Some are recent—even new.

Conspiracy theories are not justified in this case. If members look at what is proposed in the concordats, they will see that they are working documents between two Executives working within a devolution context that try to ensure that good government ensues from the relationship between the two Executives.

Alex Neil said that the Scottish Parliament has been badly maltreated because the concordats have been arrived at as part of a secret deal struck in London. He and the rest of the SNP missed the point. Not only was this Parliament not involved, neither was the Westminster Parliament. It has had no involvement in the concordats, because they are not Parliament to Parliament concordats; they are Executive to Executive concordats. There is a time to be Mr Angry from Ayrshire, or Mrs Angry from Moray, but there is also a time to hang loose, be cool and accept things for what they are. These are working documents that are about establishing good relationships between two Executives in a devolution context.

Photo of John McAllion John McAllion Labour

No, I do not have time. I have sat and listened to the SNP all morning; maybe members will sit and listen to me for four minutes.

Alex is very fond of talking about the Sunday Herald and its view on these matters, but it makes exactly the same mistake. I have the editorial in front of me. It talks about the Parliaments being bound to a concordat that was struck without their involvement. They are not concordats between the Parliaments; they are concordats between the Executives.

Even the Executives are not under any legal obligation to abide by the decisions of the joint ministerial committee. They may well feel honour-bound to do so, but even if they do, the Scottish Executive is accountable to this Parliament for agreeing to those decisions and this Parliament is under no obligation to be bound by any agreement that has been struck in the joint ministerial committee. That is the way I like it. I do not want to be bound into a concordat that I played no part in bringing about. I am surprised at the SNP.

Photo of John McAllion John McAllion Labour

I do not have time. Ms White can see me outside later on if she wants to deal with the matter.

As for Scotland being shackled by the concordats, that is a laughable suggestion. The SNP is arguing as if the concordats could be regarded as international treaties that are binding on the people of Scotland. They are not like, for example, the Maastricht treaty. If that was implemented in full, it would establish a single currency across Europe. It would establish a European central bank with central control over interest rates, public spending and increasingly over taxes. It would be right to argue that that kind of agreement would shackle Scotland. However, as I remember, the SNP voted for the Maastricht treaty, have argued consistently for the full implementation of the Maastricht treaty and have never said a whisper about Scotland being shackled by the Maastricht treaty. The arguments that we have heard this morning have been nonsense.

If the SNP is going to direct its attacks against Scotland's independence being undermined, direct it at the right targets, not at the concordats; that is not what they are about.

On the SNP amendment, if the Executive moved a motion that tried to bind this Parliament to an agreement struck in secret in London between the two Executives, I would be suspicious and the SNP would be paranoid, yet that is what its amendment is asking to be done. The SNP must make its mind up.

Photo of John McAllion John McAllion Labour

I listened to the radio this morning. There was a discussion about Greenland and whether it should settle for home rule within Denmark or go for independence. A Greenlander was on, and said, "For me, going for independence is the same as setting fire to your house or running about naked in the ice; it is crazy and it makes no sense."

Photo of John McAllion John McAllion Labour

We know that, and SNP members know it too, in their hearts. It is time that they were honest and told the Scottish people what they mean. They want to be shackled inside the European Union—a different union, but essentially the same kind of union as we are in the UK. We should stop discussing arguments that do not exist between the parties and get down to making devolution work, which is for the good of everybody.

Photo of Margo MacDonald Margo MacDonald Independent 11:20, 7 October 1999

I will take Mr McAllion's advice and keep cool.

I want to address the part of the memorandum of understanding that covers international and EU relations. The First Minister should not get too worried, as I will not make independence the sole template for judging the memorandum. However, I will take advice from Des McNulty and take note of the fact that underlying the memorandum and the concordats is a fundamental set of principles. I hope, therefore, that I will be excused for addressing some of those principles.

I refer first to the vision of the consultative steering group, set out in its report, "Shaping Scotland's Parliament". It states that the Parliament

"should adopt procedures and practices that people will understand, that will engage their interest, and that will encourage them to obtain information and to exchange views."

I refer also to what appeared to be the First Minister's vision for this Parliament: that it should

"find just the right solutions to Scotland's problems".

I had hoped that we would set our sights a little higher than that.

The CSG report goes on to record the cynicism about and disillusionment with the democratic process—with which all of us are becoming increasingly familiar. It urges that this Parliament

"should set itself the highest standards" and states that its intention is

"to achieve a Parliament whose elected Members the Scottish people will trust and respect, and a Parliament with which they will want to engage."

Let us consider the matters on which people want to engage with the Parliament. They do not place artificial boundaries on how their humanity should be practised and expressed by this Parliament, or on how their international responsibilities should be enacted.

The objectives of the CSG report are laudable, although I might quibble a wee bit with the narrow nationalism of the implication that this Parliament should seek the trust and respect only of the Scottish people. I want us to have the trust and respect of people outwith Scotland as well. However, it was still quite a good start.

We cannot meet the report's objectives if we adopt the spirit and letter of these concordats. They place an artificial barrier on the views that are expressed and exchanged by Scots outside and through the Parliament about our relationship with the citizens of the EU and our wider citizenship of the world. We have a stake in those issues, and we should not be able only to talk about them—we should be able to act on our conclusions.

In the section dealing with how Scotland will engage with people and their Governments outwith Scotland, it is made perfectly clear that Scots will be able to lobby, as we can at present, but unable to act, even on matters that have direct, day-to-day relevance to affairs in Scotland.

At the next EU intergovernmental conference, for example, which is due to be held in a couple of years' time, the treaties will be reviewed. Further political integration and the expansion of EU membership will be on the table. Under the terms of the memorandum, this Parliament will be able to discuss with Euskadi—the Basque country—Bavaria and Wallonia what we think about those matters that impact directly on Scotland, such as structural funds, fishing policy and employment policy.

However, when it comes to acting on the thoughts and priorities that we may evolve, either ourselves or with other Governments, we will have to lobby Westminster as usual, albeit through the joint ministerial committee. We will just have to hope that Westminster's thoughts and priorities are in tune with ours. That is not a situation calculated to re-engage the interest and energy of Scots in the democratic process. The principles underlying this document, as outlined by Des McNulty, have been undermined.

I will provide another, more sharply focused, instance of how the constraints of the document militate against engaging Scots with their Parliament. I believe that Pinochet came to Scotland once. Let us imagine that another Pinochet were to come here and the Spanish Government said that it would like him to be extradited. If the Westminster Parliament did not want to comply with that request—which is not unheard of—would the Secretary of State for Foreign and Commonwealth Affairs allow the Lord Advocate, within his internationally recognised jurisdiction, to carry through the express policy of this Parliament and, perhaps, the Executive, if it were of a difficult political persuasion from the Government in London? We all know that that would not be possible.

I want to mention an important marker of how we will exercise our humanity, our priorities as the Scottish nation and our supposed new democracy as the world enters the 21st century. Will we be able to act on decisions of the Labour party conference, the Scottish National party conference, the general assembly of the Church of Scotland, the conference of bishops of the Catholic Church, the Scottish Green party and the Scottish Socialist party—and on, I think, a majority of Liberal Democrat decisions—and say no to Trident? We will be able to say it, but will we be able to do it?

These concordats hold us firm inside what Westminster believes to be the United Kingdom position. If the Scottish position is obviously different, we can do nothing about that. If the First Minister will permit me, that is the answer to the taunt—repeated by Murray Tosh—that my colleague Margaret Ewing voted for the Scotland Act 1998. Even if she had said no, we would have been stuck with it. That is the situation that this Parliament was meant to remedy. That is what was claimed throughout the referendum campaign.

This memorandum serves Scotland and her Parliament ill. It means that we cannot be all that we should be and cannot do everything that we should do. We cannot accept the responsibilities of nationhood, which we claim. In short, like this Parliament, it will not do.

Photo of Hugh Henry Hugh Henry Labour 11:26, 7 October 1999

Murray Tosh and John McAllion were quite right to try to bring this debate back to what is before us this morning. It is unfortunate that the SNP has missed an opportunity to discuss and debate what is in the concordats. Instead, SNP members have tried to take the debate on to its wish list for independence.

Murray Tosh was right to remind Margaret Ewing of the bizarre situation in which she finds herself—fulminating at great length about some of the comments in the document, even though she campaigned for the Scotland Act 1998 and for this Parliament. If she did not like the devolution proposals, it would have been more honourable to reject them at the time, instead of coming back now and using the concordats as a pretext for her opposition.

Photo of Hugh Henry Hugh Henry Labour

Alex Neil started off by saying that he was going to talk about the concordats and not about other issues. Very quickly, however, his mask slipped, along with that of others. Today we have heard a rant against the English, against Westminster and against everybody who does not share the Scottish National party's narrow perspective. It would have been more honourable for the SNP to propose a debate on independence, to take place in its allotted time. Let us have that debate on our differences, rather than use the concordats as an excuse for it.

Photo of Dorothy-Grace Elder Dorothy-Grace Elder Independent

Does the member agree with what Tony Blair had the impertinence to state more than a year ago—that sovereignty rests with him, as an English MP? Is that what Hugh Henry believes?

Photo of Hugh Henry Hugh Henry Labour

No, it is not what I, the Labour group in this Parliament or the Labour party believe.

Photo of Hugh Henry Hugh Henry Labour

Tony Blair does not believe that.

If Alex Neil had something constructive to say, why this morning did he join the rant against the UK Government and the English, and why have we been subjected to paranoia and abuse that has nothing to do with this debate? Alex Neil talked dismissively of these concordats being prepared—

Photo of Sandra White Sandra White Scottish National Party

Hugh Henry mentioned Tony Blair and the UK Government. We cannot get away from the fact that, when a written question on this matter was put to Mr Dewar, he answered:

"The UK Government has prepared drafts, which have now been received by the Scottish Executive."—[Official Report, Written Answers, 24 August 1999; Vol 1, p 232.]

Does the First Minister think that the fact that the UK Government prepared and put forward the drafts is fair and democratic? I do not.

Photo of Hugh Henry Hugh Henry Labour

I find Sandra White's comments bizarre. All morning, the point has been made to members of the SNP that the Scottish people rejected independence and indicated that they wanted to remain part of the UK.

We have an Executive that is charged with taking forward government and, whether Sandra likes it or not, we are part of the United Kingdom and we have a United Kingdom Government. This is an agreement between the United Kingdom Government and the devolved Administrations.

In a sense, we have something that the English do not have: we have the United Kingdom Government negotiating with the devolved Administrations. That is an advantage that we have over our compatriots in England.

Photo of Hugh Henry Hugh Henry Labour

I will not take an intervention because I have already taken two.

The concordat is an agreement between the Administrations. This Parliament will hold the Executive to account and will scrutinise closely the work of Jack McConnell, Donald Dewar and others.

Photo of Hugh Henry Hugh Henry Labour

No, John. I have taken two interventions and I hope I get some credit for that.

We will hold ministers to account. The concordat says that the role of ministers and officials from the devolved Administrations will be to support and advance the single UK negotiating line. The emphasis in negotiations has to be on working as a UK team. That is what the SNP does not like. It does not like the fact that we are still part of the United Kingdom. [Applause.]

I am glad that the SNP has acknowledged that. This morning, Alex Neil said that he was not going to concentrate on that and that he would concentrate on the concordats, but the SNP has gone back to its fundamental argument about divorce from the UK.

Someone had to prepare the document. The UK Government prepared it and passed it to the Administrations to allow comments to be made. The Parliament now has the opportunity to comment on it. The proper process has been followed but the SNP does not like the fundamental premise on which the document is based.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

On a point of order. Mr Henry said that the SNP had spent this morning attacking the English people. Is it in order for him to say that when the SNP has not done that this morning or at any time? I believe that a ruling should be made on this matter as it goes to the heart of this issue and many others.

Photo of Patricia Ferguson Patricia Ferguson Labour

We will check the Official Report to find out whether a ruling has to be made and we will get back to you.

Photo of Christine Grahame Christine Grahame Scottish National Party 11:33, 7 October 1999

Fergus took the words out of my mouth. I am half English and I have never ranted against my mother or any members of my family and the SNP has never ranted against the English people. I look forward to an apology from Hugh Henry.

I want to comment on what Murray Tosh said. I did not vote for devolution—I make no secret of that—but I am not here to destroy the Parliament; I am here to see it succeed and grow.

The concordats constrain the Parliament. We had no opportunity to discuss them before they were presented to us and, as Miss Goldie said, the document was presented first to the press—another insult to the democratic process of the Parliament.

Donald Dewar described the drafting of the document as a team effort. From what we have heard, though, team A handed it down to team B.

John McAllion said that this was not an agreement between Parliaments. That is right: the agreement is between the Labour party in the south and the Labour party in Scotland. It has bypassed the parliamentary process.

I want to go to the heart of the document. Earlier, I raised a point about the joint ministerial committee. There are great difficulties for us on that matter. We will not know what it discusses, when it discuss it, how it discusses it or what the results of those discussions are. How can we hold the committee to account? We might read leaks in the press, but we will not know whether the leaks come from the Executive or are soft leaks. That is very wrong in a country where transparency is the order of the day.

I accept Mr Tosh's point about the Parliament's committees having the ability to scrutinise what the joint ministerial committee does, but we cannot do that without access to minutes or other information.

Page 7 of the memorandum outlines the joint ministerial committee's terms of reference, one of which is

"to consider non-devolved matters which impinge on devolved responsibilities, and devolved matters which impinge on non-devolved responsibilities".

We know that law is always hard where it is grey. Who makes the distinction to which the terms of reference refer? How will we ever know what distinctions have been made? If we do not have the information, we cannot know who has decided what was devolved and what was not.

Another matter that concerns me is the giving of information. Page 3 tells us that it is for the Administration that is providing information to state what restrictions, if any, should be placed on that information's use. That means that if this Administration asks Westminster for information, Westminster can put restrictions on its use.

For example, I might be bold enough to ask the Scottish Executive what inquiries it has made of Westminster about policy guidelines for regional selective assistance for, say, an electronics company in north Tyneside whose activities have impacted on employment in the Borders. If the principle that is outlined in the document is applied, the Executive might be gagged. I might not have access to information that would impinge on devolved matters.

Photo of Donald Dewar Donald Dewar Labour

I think that the member would be the first to say that the Scottish Parliament should have a right to a different freedom of information act from one in England. Each Administration would expect its freedom of information rules to be observed if information was exchanged. That seems to be a reasonable safeguard.

Photo of Christine Grahame Christine Grahame Scottish National Party

Donald Dewar has not taken my point. I have found it extremely difficult to get the information I referred to. The problem is that if I sought information from Westminster, restrictions could be placed on its use. That would be done at the joint ministerial committee.

I am concerned about the witch hunt that the press is conducting against the Parliament. I read a nonsense of a headline in The Scotsman today:

"Secrecy for the sake of secrecy".

The editorial comment tries to tell committees whether they can hold meetings in private. There is a lot of nonsense in that paper today but what concerns me about the joint ministerial committee is that the Parliament does not even have access to what is being discussed. I hope that Andrew Neil—that great advocate of the union—will chase up the joint ministerial committee when it gets up and running.

Mr Dewar said that the agreement was honourable. It is not honourable because we have not had the opportunity to discuss it until it is presented to us. We know that the Parliaments must operate together. It is not in the interests of Scotland or England to be disharmonious; it is in the interest of this Parliament to be democratic. The document was not presented to us democratically and the process has not been transparent. The operation of the concordats will not be transparent either.

I think that the document is designed to lock doors in the Parliament. I have news for the Executive: I am a bit of a lock picker.

Photo of Cathie Craigie Cathie Craigie Labour 11:40, 7 October 1999

Presiding Officer, thank you for the opportunity to speak in today's debate. Much of what I wanted to say about the concordats has been covered by my Labour colleagues. However, I should have my say on a significant debate for the people of Scotland and the United Kingdom as a whole. The people of Scotland voted for a Scottish Parliament with powers to take decisions on issues that affect their everyday lives. They voted for a Parliament that would bring power closer to them. The majority of them voted in the Scottish elections for parties who would deliver them power as part of the United Kingdom.

The memorandum of understanding establishes the principles that will ensure that relations with the UK Government and the other devolved Administrations give strength to our country. As has been stated this morning, the nationalists did not want the Parliament that the people of Scotland voted for. At the election, they even tried to hide their real identity and purposes from the people of Scotland. They tried—and still are trying—to put their nationalist views on the back burner. However, the people of Scotland know what the Scottish National party is about and rejected its argument. I remind Parliament—and particularly our nationalist friends in the Opposition—that the electorate rejected the nationalists' hallucinations of independence.

Like nationalist movements that we have seen before, the SNP finds it hard to accept democratic decisions and is now trying to undermine the first democratically elected Scottish Parliament that this country has had. In his opening statement, the First Minister said that the nationalists appear to misunderstand the memorandum of understanding. I will be less kind than he was and, like many others today, suggest that they are deliberately trying to mislead the public, creating an argument to suggest that the memorandum of understanding is something that it is not. It is designed to ensure that the devolution settlement works, that the UK and devolved governments work in partnership and that the constitutional changes work for the people of Scotland. As Margaret Ewing said, it is a matter of democracy. I remind her that at the referendum—for which most of us campaigned—the people who voted knew that they were voting for a devolved Parliament as part of the United Kingdom.

Photo of Cathie Craigie Cathie Craigie Labour

Margaret has bobbed up and down all day—she has had her opportunity.

When the electorate came out in great numbers, they knew that they had voted to remain part of the United Kingdom. People voted overwhelmingly for parties that supported Scotland within the United Kingdom. It is a matter of democracy; the people of Scotland have had the democratic opportunity—through the ballot box—to say that they want to see Scotland as part of the United Kingdom. The nationalists were criticising the Labour Administration for not operating in a democratic manner. Many of them would not even be sitting here if the Labour Government had not extended the democratic process and allowed them to have seats in the Parliament.

Photo of Cathie Craigie Cathie Craigie Labour

No, I will not—I am about to finish.

The new Labour Government and Donald Dewar, through the Scotland Act and the devolution settlement, have extended the democratic process to the people of Scotland. One of the beneficiaries has been the Scottish National party.

Photo of Adam Ingram Adam Ingram Scottish National Party 11:44, 7 October 1999

I will focus my remarks on the concordat on financial assistance to industry, and on inward investment in particular.

Members will be aware that Scotland continues to attract a higher share of inward investment than would be expected for its relative share of UK gross domestic product. During the 1990s, the Scottish share of foreign inward investment projects coming into the UK has typically averaged between 15 and 20 per cent of the national total. There is little doubt that overseas multinationals have played a considerable role in modernising our industrial structure, most notably establishing and sustaining the major electronics sector. Together, overseas-owned manufacturing companies directly employ some 80,000 people in Scotland.

Scotland owes its success not only to the fact that it was the first part of the UK to plan to attract inward investment in a systematic way, but to the excellent performance of Locate in Scotland over the past two decades. It is vital that that agency is allowed to continue its work in an unfettered way, operating as it does in a fiercely competitive marketplace. Scotland needs to work hard to stand still.

Scotland's relative success with inward investment has been a constant source of irritation in Whitehall. There have been repeated attempts to clip Scottish wings and to submerge Locate in Scotland in the Department of Trade and Industry's Invest in Britain Bureau. Back in 1996, it was Michael Heseltine who had to be beaten off, but not before he had intervened to redirect a £450 million project by Samsung from Scotland to the north of England.

The advent of new Labour reinvigorated the bureaucratic, centralist tendency—or was it mere empire building? Margaret Beckett launched a fierce bid to bring Locate in Scotland under control. Not only did Mrs Beckett want to establish a concordat to that effect, she even demanded a veto on regional selective assistance packages and the reduction of Scotland's grant allocation to a per capita basis. While that was going on, Donald Dewar's devolution white paper was being published. It stated:

"Devolved matters over which the Scottish Parliament will have legislative power include . . . inward investment including the functions of Locate in Scotland".

No wonder Jim Wallace, in The Scotsman on 5 November 1997, was moved to attack the DTI's threats in the following terms:

"At a time when every move should be directed towards the decentralisation of decision making, we seem to have a clear case of the centre wanting greater control. That is inconsistent with the Government's whole approach."

That was a principled position to take, but I suspect that today we will witness—and not for the first time—the leader of the Scottish Liberal Democrats having to eat his words in order to hold on to his newly found ministerial status.

Let there be no mistake about this: the concordat hands over control of Scottish inward investment to London. The document states categorically that the UK Government will be responsible for promotion of the UK as a whole to foreign investors. When there is competition between two or more parts of the UK for large mobile investments, discussions will be held in an overseas promotion committee, consisting of four UK ministers and only one minister from each of the three devolved Administrations. Failing consensus, the final arbiter will be the Cabinet Office—a dead giveaway, if there ever was one, that Whitehall has won.

We now face the ludicrous situation—complained about by Jim Wallace when in opposition—that Locate in Scotland will be facing more restrictions on its operation after devolution than it did before. For Scotland's economy, that will prove to be a real tragedy.

Photo of Keith Raffan Keith Raffan Liberal Democrat 11:49, 7 October 1999

Alex Neil opened the debate by saying that it was not about independence versus devolution, and then he proceeded to attack the memorandum of understanding and the concordats from an independence—or separatist—perspective. He is entitled to do that, but while his first sentence was measured, he degenerated rapidly into a rant.

Sadly, every single member of the Scottish National party has followed in his wake for the rest of the debate. [Interruption.] The SNP has to learn to listen to other speeches. I have sat through this debate for two hours, listening to them. I have not heckled them. It is only fair that we all have a right to say what we want to say. SNP members must not bring to the chamber their habit of shouting down people who disagree with them. They have got to learn to listen. We take a different view, and they came to the chamber today to fight again an election that was fought only a few months ago and which they lost. They did not just lose the election marginally; they lost overwhelmingly. Today almost the whole of the chamber is against the SNP: nearly 100 members against just 35. We have a different perspective.

Photo of Keith Raffan Keith Raffan Liberal Democrat

I will not give way. I will say what I want to say—I have listened to an awful lot today. Like John and Hugh and other Labour members, I think that it is time we had a measured and sensible perspective on this.

The Scottish Liberal Democrats look at the concordats from a devolutionary and federalist point of view. The concordats represent a commonsense approach. We have heard about a commonsense revolution in Blackpool. Perhaps Miss Goldie will be delighted to hear that, among Labour and Liberal Democrat members, common sense is not a revolution—it comes naturally.

As the First Minister rightly said, these are working documents. They are not legally binding. I am glad that Alex Neil has dropped his argument about amending them. If they are not legally binding, how can they be amended? The memorandum makes it clear that the agreements can be updated and adjusted.

It is important to note that the agreements also represent a flexible approach. For example, they allow bilateral arrangements to be developed between the Scottish Executive and the Welsh and Northern Irish ministers. That, too, is very useful. If such arrangements are made, they will no doubt come before this Parliament.

The last comment that I want to make is on Adam Ingram's point about inward investment. When I was a member of another place for another part of the country [MEMBERS: "For another party."] I was on the Welsh Affairs Select Committee when it examined inward investment. Competition between different parts of the UK is healthy. Learning from each other's best practice is healthy. A bidding war is unhealthy.

Photo of Keith Raffan Keith Raffan Liberal Democrat

Competition for large mobile inward investment projects will not be controlled from the south. Adam used words that are not in the concordats. The secretariat will co-ordinate and the council for overseas promotion will oversee, not control.

Photo of Keith Raffan Keith Raffan Liberal Democrat

I will not give way as I have been asked to wind up. It is crucial that different parts of the country should not be played off against each other by inward investors, who are only too well aware that as well as Locate in Scotland and the inward investment arm of the Welsh Development Agency, there are 10 English regional development agencies.

Photo of Keith Raffan Keith Raffan Liberal Democrat

I will not give way. I have said that already. Can I finish?

The crucial thing is that such negotiations are overseen so that we do not degenerate into a bidding war. That is in nobody's interest. It is not in the interests of Scotland, Northern Ireland, Wales or England, and it is certainly not in the taxpayers' interests.

Photo of Keith Raffan Keith Raffan Liberal Democrat

It is exactly right that the committee for overseas promotion should play a co-ordinating role. For inward investment as for other matters, the concordats represent a commonsense approach.

Photo of Lord James Selkirk Lord James Selkirk Conservative 11:53, 7 October 1999

I have considerable sympathy with the points made by Adam Ingram on inward investment. It is well known that both the First Minister, when he was secretary of state, and previous secretaries of state had to fight off attempts by the Department of Trade and Industry to take on much greater powers and control over inward investment.

Photo of Adam Ingram Adam Ingram Scottish National Party

Is it not the case that both Lord James and Mr Raffan have served in another place? The question of bidding wars was raised in the report of the Trade and Industry Select Committee in December 1997. The committee concluded that claims about bidding wars were based on

"a great deal of hype and exaggeration based on figures of questionable validity."

Does Lord James agree with that conclusion?

Photo of Lord James Selkirk Lord James Selkirk Conservative

It is my conviction that we won so many inward investment projects because Locate in Scotland was extremely good at its job and was very effective. There was a perception in the House of Commons that both Scotland and Wales had done extremely well. Frankly, there was an element of jealousy. It is important that Scotland retains its fair share of inward investment resources. In the interests of equity and fairness it is essential that the concordat should operate on a level playing field. It is vital that the ministerial group should make decisions in an open way that is accountable to Parliaments and Assemblies.

It is regrettable that the statement was not made first to Parliament, as it could have been. It is important that significant developments be announced in this Parliament. We should not be marginalised by the Executive. It is legitimate for MSPs to ask questions at the time of announcements. For example, I understand that concordats between individual departments have still to be published and are still not accessible to members. In due course, we need to know their contents to establish whether the principal agreement will stand the test of time.

A major issue that is raised by these concordats is that they could lead to legal action. On 12 May 1998, Mr Henry McLeish replied to Mr Jim Wallace—Mr Wallace was asking the questions then, and Mr McLeish was doing the answering—saying,

"it is likely that they will be justiciable to an extent. For example, if the Scottish Executive did not follow the consultation procedure set out in a concordat, it could be judicially challenged on the ground that it had created a legitimate expectation that the procedure would be followed."—[Official Report, House of Commons, 12 May 1998; Vol 312, c 193.]

Similar words were uttered by the Solicitor General in the House of Lords.

It appears that the expectation of being consulted can be treated as the equivalent of a legal right. If the Executive accepts that concordats will have legal implications in judicial proceedings, why are we not being given the opportunity to amend the details of the concordats? I ask the Deputy First Minister whether Parliament will be given that power in future. I understand that the Executive will have the power to make amendments.

I will suggest just one very small amendment. I notice that the concordat on international relations does not even deal with aid. That is an unfortunate omission. Many aid-giving agencies have bases in Scotland. The Government has indicated that it intends to involve the devolved bodies. I hope that the minister will take this point on board.

The concordats are designed for a situation in which the Scottish and British Administrations are of the same political inclination. On 1 July 1998, Mr Henry McLeish said to the Scottish Affairs Select Committee that he hoped that good will would prevail. I hope that, even though there may be a change of administration, as undoubtedly there will be over the next 30, 40 or 50 years, the procedures will take care of it. It should be noted that the time scale of 30, 40 or 50 years is very much shorter than that suggested by the Prime Minister, but some in the Parliament believe that a change may come well within 30 years.

Whatever reservations we have about the document, Mr McLeish made it clear that the proposal is to enable a commonsense working dialogue to take place within a framework. We believe that that is reasonable. It seems, in Mr McLeish's words,

"that in the changing face of the constitution of the Government of the UK, Scotland will be involved in change. Let us have a working relationship that will be the basis for dialogue".

I will raise one matter that could lead to the concordats being substantially changed. It is the passage in the memorandum on European policy. On page 17, at B3.14, the memorandum says:

"The role of Ministers and officials from the devolved administrations will be to support and advance the single UK negotiating line which they will have played a part in developing."

It may well be that Scottish fishermen off Peterhead will call for different solutions from those for which fishermen off Devon and Cornwall will call. It is not easy to see how that would be readily resolved. The suggestion that officials in the Scottish Administration would support the single UK negotiating line when the First Minister might be arguing for something very different could create a situation in which civil servants are faced with a conflict of loyalties. I believe that this document should give a much fuller role to Scotland's First Minister, who should be involved in all matters relating to devolved responsibilities.

Photo of Richard Lochhead Richard Lochhead Scottish National Party

I thank Lord James for giving way. In light of his comments in connection with the fishing industry, will he join me in condemning the recent comments made by the House of Commons Agriculture Committee in its report on sea fishing? The report says that concordats should be used to curb any advantage that devolution might give to Scotland's fishermen.

Photo of Lord James Selkirk Lord James Selkirk Conservative

I would have to study the terms of the report before coming to a conclusion on that point.

I believe that the First Minister should be given a fuller role in the drafting of the concordat, because there could be a conflict between the line taken by the UK minister and that taken by the Scottish Executive. It is somewhat naive to assume that Scottish Executive officials would automatically owe their loyalty to the United Kingdom minister, because, quite frankly, in the event of such a dispute, I think that they would want last-minute changes to benefit Scotland.

We have covered the issue of sovereignty; Margaret Ewing spoke about it. Before the establishment of the Scottish Parliament, the argument about devolution in Westminster was that the United Kingdom Parliament would be able to intervene at any time on any issue. To give an example, oil and gas are reserved matters, but uranium is not. If uranium and nuclear fuel were dealt with on a large scale in Scotland, matters relating to that would come under the Scottish Parliament. I suggest that it would be resented if the UK were to try to intervene in that. Concordats recognise the fact that the UK Government cannot readily intervene and should be reluctant to do so.

We do not intend to vote against the motion, whatever our irritation that the concordats were not announced to Parliament, or our reservations about the wording. We think that the wording needs considerable improvement. Overall, concordats represent a sensible measure. We want to ensure that they work, in order to maintain fair and adequate relationships between Scotland and Whitehall under devolution. Concordats should receive full scrutiny, be changed where necessary and be reviewed periodically.

Photo of John Swinney John Swinney Scottish National Party 12:02, 7 October 1999

The debate has been interesting and I compliment everyone who has taken part. We got off to a rather shaky start, with the Executive's careless preparation of the motion. That is symptomatic of the careless way in which the whole matter has been handled. The issue of concordats is not exactly a surprise, nor is it something that has been thrown up recently; it has been around not only in the current debate, but during the whole passage of the Scotland Bill through the House of Commons.

Why did the First Minister and the Secretary of State for Scotland feel the need to hold a press conference to explain the contents of the document before it came to the Parliament? We followed the same format as we did yesterday, with the First Minister giving a statement and then opening up the matter for debate. The Executive has been discourteous in its handling of this matter and I hope that it has learned some lessons.

Photo of Murray Tosh Murray Tosh Conservative

Does Mr Swinney agree that the discourtesy was double in that the matter should have been the subject of a simultaneous statement in the House of Commons?

Photo of John Swinney John Swinney Scottish National Party

I am sure that the Speaker of the House of Commons will have something to say about that when Westminster resumes in a couple of weeks. The Executive will soon know the severity of the Speaker's wrath in such matters.

If we consider the way in which parliamentary questions are dealt with, a host of other issues are revealed. Alex Neil has asked a number of questions about the preparation of the concordats. I will not go through them, but there is an extensive selection on the subject in Written Answers of 13 September to 17 September. In every case, the Deputy First Minister, Mr Wallace, went to the trouble of saying that he would reply to the member as soon as possible. That was 13 September and we are now in early October. Surely the Executive could have released some information about the preparation and the process that it was going through in the dialogue on concordats.

Another issue at the heart of the debate is how the Parliament should consider the issues that arise from the concordats. John McAllion, Hugh Henry and Des McNulty—who is not here for the summing up, despite the strictures that the Presiding Officer made yesterday—made the point that the concordats are agreements between Executives. I acknowledge that. However, we need to know our ability as a Parliament to hold the Executive to account for the action that it takes under those agreements.

John McAllion cannot accuse me of being paranoid when he considers the number of answers that Jim Wallace gave to Alex Neil saying that he would reply as soon as possible. Those answers give absolutely zero information. The issues at the heart of the memorandum of understanding will be handled by the joint ministerial committee in secret. The minutes will be confidential and unavailable to the Parliament. How can our committees hold the Executive to account if the minutes are private and ministers can hide behind answers such as "I will reply as soon as possible" and "That document is confidential"?

Photo of Hugh Henry Hugh Henry Labour

Surely the product of ministerial deliberations is evident in the legislation and policies that are put before the Parliament. Our committees can scrutinise those deliberations in a way in which elements of the UK Administration cannot. I would argue that we are in advance of other parts of the United Kingdom.

Photo of John Swinney John Swinney Scottish National Party

Is it not fair for us to know whether the Scottish Executive has fought valiantly in Scotland's interests at a particular stage in the deliberations? Perhaps the Executive has been pushed into compromising on some issues. Are we not entitled to be told how hard our Executive has fought on behalf of the Scottish Parliament? We have a legitimate right to know.

George Lyon said that the Scottish Liberal Democrats agreed on the need for a mechanism to ensure that outbidding for inward investment does not take place. Great. The Scottish Liberal Democrats have again shifted their ground. On 20 November 1997, before the election, Jim Wallace said:

"I find it extraordinary that after devolution there will be more restrictions on the freedom of operation of Locate in Scotland than there is pre-devolution."

On 16 October 1997, he said:

"It will be resented in Scotland if initiatives of the Scottish Parliament in a devolved subject have got be cleared with the DTI first."

However, that is implicit in the memorandum of understanding, which, in the section dealing with consultation on particular cases, says that, before making offers of financial assistance, the Scottish Executive and its agents, Locate in Scotland, are obliged to take information

"in adequate detail and to a reasonable timescale" to a ministerial committee. While all the agencies in the United Kingdom are in committee, the Republic of Ireland and the rest of the global market will be winning inward investment. That is the real competitive disadvantage that is faced by the Scottish Parliament, the Scottish Executive and our leading and highly commendable agency, Locate in Scotland, whose competitiveness is being strangled by the agreement.

When Mr Wallace sums up, he had better explain how he can square the comments that have been reported by me and Adam Ingram with the stance that he, George Lyon and Keith Raffan have taken in the Parliament today.

There has been some confusion about the legal status of the concordats. I challenged the First Minister on that—I notice that he, too, is going against the Presiding Officer's strictures; he still has not returned for the summing up. He said that the documents were not legally binding, but that, if the UK Government was not delivering on its side of the bargain, the Executive would have something to say about it. If it is possible to apply discretion as to the ability of the different partners to act in the spirit of the agreements, but nothing is enforceable, there is a debate about the legal status of the documents and the obligations that they place on the different partners. That has not been resolved by today's debate.

The SNP has made some suggestions on how to improve the concordats. My colleague Mr Neil suggested a rotating chair for the joint ministerial committee and the publication of the committee's minutes as an addition to the democratic parliamentary scrutiny of the Executive's actions. Those are reasonable requests. We can do absolutely nothing about the concordats because they have been presented to us on a take-it-or-leave-it basis. There has been no consultation or dialogue; the Executive has simply to turn up, go through the motions and allow a debate for two and a half hours. That is not effective parliamentary scrutiny.

I get very concerned when ministers begin to hide behind the details of documents, behind the claim that an issue is confidential because it cropped up in the joint ministerial committee and behind answers such as, "I shall reply to the member as soon as possible". This Parliament has had its ability properly to scrutinise the Executive constrained by the way in which the Executive has signed up to work in partnership with the Executives of other institutions in the United Kingdom.

The fundamental question put by my colleague Mr Neil at the start of this debate has not been answered—how do we structure good neighbourly relations between the component parts of the UK? That is the question at the heart of the issues that the Scottish National party has raised; I hope that Mr Wallace will answer it in his summing up.

Photo of Jim Wallace Jim Wallace Liberal Democrat 12:10, 7 October 1999

I am pleased to wind up this debate, which has, on the whole, been useful, although many of the predicted misapprehensions have been well aired, not least by SNP members. I will try to offer some reassurance and some explanations, although I am always conscious that there are none so deaf as those who do not want to hear.

I will start by picking up a point about the announcement of the concordats. Much has been made about the press conference that the First Minister and the Secretary of State for Scotland gave on Friday morning. Much has also been made by Mr Swinney about parliamentary answers. Mr Swinney has no doubt read the parliamentary answer given to his colleague Richard Lochhead last Thursday. In question S1W-1772 Mr Lochhead asked the Executive whether it would publish any minutes taken during discussions on the memorandum of understanding and the concordats. The answer from Mr Dewar was:

"No, but the texts themselves will be made public tomorrow and will be subject to debate in the Parliament before they come into effect. Copies will be available for Members in the Document Supply Centre."—[Official Report, Written Answers, 30 September 1999; Vol 2, p 158.]

That parliamentary answer intimated that the documents were to be published, and I am advised that the documents were available in the Parliament's information centre shortly before the press conference in Glasgow—indeed, they were available on the website by midday.

Photo of Annabel Goldie Annabel Goldie Conservative

Is the Deputy First Minister seriously suggesting that that is an effective way for the Government to transmit information to members of this Parliament? Is that the best that we can expect? [Applause.]

Photo of Jim Wallace Jim Wallace Liberal Democrat

I note that—as happened when she sat down after her speech—Miss Goldie gets more applause from the SNP benches than she does from her own.

Photo of Jim Wallace Jim Wallace Liberal Democrat

I hope that Miss Goldie will give me a chance to answer the question. The assertion has been made that there was no intimation to Parliament. That assertion is simply not true. I am sure that, as someone who reveres the Westminster Parliament, she will agree with the point that Mr Tosh made in an intervention, but I do not think that she is suggesting that we should have delayed all those announcements until Westminster reconvened. The agreements were tripartite. They involved not only this Executive but the Cabinets of the National Assembly for Wales and Westminster. The date was agreed between those parties and, as I said, the documents were available to MSPs last Friday.

Photo of John Swinney John Swinney Scottish National Party

I have observed Mr Wallace's career in Scottish politics for many years. He has made a distinguished contribution to the pursuit of greater information for the benefit of the public. Is he seriously trying to tell us that a couple of lines given in an answer to Richard Lochhead the day before publication of the concordats is adequate consultation with the Scottish Parliament? What has happened to Mr Wallace's view of democracy?

Photo of Jim Wallace Jim Wallace Liberal Democrat

The point that was made referred to publication, and I indicated what the publication arrangements were. Mr Swinney—who has made so much of parliamentary questions—seems to be very dismissive of parliamentary answers, suggesting that because they give part information, they are to be dismissed as just two or three lines of writing.

Photo of Jim Wallace Jim Wallace Liberal Democrat

I will give way to Mrs Ewing in a moment.

One of the most substantive issues raised in the debate concerned the legal position of the documents. There have been some helpful references to questions that I asked Mr McLeish in 1998. It was clear from the response that was given and from the very useful briefing from the Scottish Parliament information centre that the documents do not give any legal justiciable rights to people. However, it is not unheard of for documents that are essentially administrative to give rise to issues of judicial review. The documents that we are discussing, however, do not give any new legal rights.

In speaking to the SNP amendment, Mr Alex Neil said that we were talking about being good neighbours. If that was good neighbourliness, heaven help us if we had bad neighbours. He quickly lost the plot as to the distinction between a devolution and an independence settlement. Almost without exception, every SNP member who spoke made precisely the same mistake.

Mr Neil clung to a quote from the Sunday Herald. It reminded me of when I used to appear before the second division of the Court of Session; Lord Wheatley would lean over and say, "And is that your best authority, Mr Wallace?" It appears that Mr Neil's best authority is the Sunday Herald. He proceeded to reel off points on things such as housing benefit. If there are to be changes to housing benefit—a social security matter that is reserved to Westminster—which could, because of the different arrangements, impact on Scotland differently to the way in which they would impact on England and Wales, that is a good example of precisely why we want to have working arrangements, so that such information can be exchanged.

Photo of Jim Wallace Jim Wallace Liberal Democrat

I will give way to Mr Neil in a minute. He also said that the joint ministerial committee that is being set up could have a veto on any proposals made by the Cubie committee.

That is arrant nonsense, and I think that in his heart of heart he knows it.

Over many years in Parliament, I have had considerable respect for Mrs Margaret Ewing, but I am afraid that she lost the plot today. She told Parliament that she had sat through hours of debate on the Scotland Bill. She must have slept through them, because I can remember debates specifically about whether Westminster could continue to legislate on matters that were devolved. I opposed that, as it was not consistent with federalism.

Photo of Richard Lochhead Richard Lochhead Scottish National Party

Can Mr Wallace reconcile the answer that he gave me on 21 September—that the Scottish Parliament would not be party to any concordats—with his words on 2 December 1997 in the House of Commons, when he sought assurance from the then minister that the concordats would indeed come before the Scottish Parliament?

Photo of Jim Wallace Jim Wallace Liberal Democrat

I can readily reconcile those two statements. The concordats are coming before the Scottish Parliament—that is what we have been discussing for the past two and three quarter hours.

Mrs Ewing misses the point. These are working arrangements for a devolution settlement; they are not a treaty negotiated between two nation states.

Photo of Margaret Ewing Margaret Ewing Scottish National Party

I was making an important point about the responsibility of this Parliament to develop democracy. How does Mr Wallace believe democracy can develop and this Parliament's powers can extend to improve the lives of our people unless he changes some of the concordats that we have debated this morning?

Photo of Jim Wallace Jim Wallace Liberal Democrat

The very fact that we have a Parliament greatly enhances democracy in Scotland. One hears complaints that somehow or other the Executive had suddenly been imposed from above on an unwilling public. Unlike the Government in Westminster, this Executive has been elected by Parliament; it has legitimacy because it was elected by a democratic body that was elected by the people of Scotland. We as an Executive will be answerable to this Parliament, and in turn the Parliament will be answerable to the people of Scotland. That is how it should be.

Mr John McAllion made a very clear point on the question of accountability. If—in the very unlikely event of a common line being adopted for a European fisheries policy—this Parliament was not happy with that common line, I do not imagine that Mr Richard Lochhead would be sitting on his hands when Mr John Home Robertson came back to report from the Council of Ministers. The way in which we discharge our responsibilities over a whole range of issues will be thoroughly scrutinised.

Mr Bruce Crawford asked why there was no separate minister for European affairs. It is because Europe pervades all our actions. When Sarah Boyack goes to meetings of transport ministers or environment ministers, she is negotiating and taking a Scottish line within a common UK position. The Scottish Executive does not need a European minister. Ministers will come back to this Parliament and be accountable to it.

Photo of John Swinney John Swinney Scottish National Party

Mr Wallace has been very gracious in giving way several times; I appreciate that. If the Parliament wants to debate an issue that arises in the joint ministerial committee, will he be prepared to release the minutes of that committee so that Parliament can undertake close scrutiny of the ministers whom we have elected?

Photo of Jim Wallace Jim Wallace Liberal Democrat

There has been much misinformation about the joint ministerial committee being some overarching executive committee. It is not an executive committee; it is a consultative committee. Even the code of guidance for access to official information makes it perfectly clear that frank and candid discussions should not be seriously prejudiced by access.

Such a stipulation applies to the Cabinet of the European Parliament as well as to the Scottish Executive. I honestly do not believe that the chamber thinks that it would be in the interests of Scotland for the joint ministerial committee to release details of, for example, discussions about the commercial considerations of an inward investment. It would also not be in our interests to make the public aware of our bottom-line position in negotiations with our European partners about issues such as fisheries or the common agricultural policy. On occasions, it is in the best interests of serving Scotland that such candid and frank discussions take place without access.

Photo of Jim Wallace Jim Wallace Liberal Democrat

I really ought to make progress as there is a business motion to follow. The Presiding Officer is nodding—I think that I might already be straying over time.

A couple of members raised points about Scotland House. I can confirm to Mr Lyon that there will be a hot-desk facility at UKRep in Brussels and that Scotland House will be fully plugged into information flows that come through UKRep. At the same time, Scotland House will have the opportunity to provide a specifically Scottish focus for Scottish interests in Brussels. In that way, we get the best of both worlds. As Mr Lyon said, we will have 10 votes when we negotiate in the European Union, instead of the three that we would be left with if we were in the hands of the SNP.

I well remember SNP MPs pleading with the previous Conservative Government to take effective action against the dumping of farmed salmon on the European market, because they knew that the Irish Government—which was prepared to take action—was incapable of delivering results on its own. We have the benefit of being part of the UK as well as having our own Parliament to deal with a range of domestic Scottish issues. The people of Scotland voted for that settlement once in a referendum and overwhelmingly voted for it again in the Scottish Parliament elections. That settlement is reflected and made workable in these documents, which recognise that this is a Parliament within a United Kingdom, where it is in all our interests for us all to co-operate. I ask the Parliament to support these concordats.