Working with the DAs

Chapter 14 - Devolved Administrations - The Constitutional Context

Devolved administrations - constitutional context
Devolved administrations - Memorandum of Understanding and Concordats
Devolved administrations - Devolution Guidance Notes

Devolved administrations - constitutional context

1. Following referendums in Scotland, Wales and Northern Ireland in 1997 and 1998 on how they should be governed, devolved powers were formally transferred by Acts of Parliament from the UK Government to the devolved administrations in Scotland and Wales on 1 July 1999 and to the Northern Ireland Assembly and Executive on 2 December 1999.

2. Under the Government of Wales Act 1998 (amended by the Government of Wales Act 2006), Scotland Act 1998, and the Northern Ireland Act 1998, the UK Government retains responsibility for international relations, including relations with the EU. In particular the FCO continues to be responsible for the foreign policy of the UK and for promoting the international interests of the UK. By extension, FCO missions abroad continue to serve the interests of the whole UK. However, the devolved administrations (DAs) are entitled to promote themselves overseas, and often co-operate with HMG to do this.

3. The Scottish Parliament is able to pass primary legislation (i.e. Acts of the Scottish Parliament) in all those areas that have not been specifically reserved to the UK Parliament under the Scotland Act 1998. The First Minister heads the Executive. Scottish ministers carry out the same kind of functions in devolved areas in Scotland (education, health, transport, etc.) as UK ministers do in relation to those areas in England. (Source: `Finding your way around Whitehall, Westminster and beyond', National School of Government, 2007).

4. Since May 2007 the National Assembly for Wales has been able to make primary legislation in the form of `Assembly Measures' in areas specifically transferred to it by Westminster. (Source: `Finding your way around Whitehall, Westminster and beyond', National School of Government, 2007).

5. Power was restored to the devolved institutions in Northern Ireland in May 2007. The Assembly enjoys legislative powers on a similar basis to the Scottish Parliament. (Source: `Finding your way around Whitehall, Westminster and beyond', National School of Government, 2007).

6. Elections in Wales and Scotland took place on 1 May 2003 and 3 May 2007. The next round of elections to all three devolved administrations are scheduled for 2011.

Devolved administrations - Memorandum of Understanding and Concordats

7. The conduct of international relations has implications for the devolved administrations (Scottish Executive, National Assembly for Wales, and the Northern Ireland Executive Committee). A Memorandum of Understanding between UK Ministers and Ministers of the respective devolved administration governs the relationship. The Memorandum is supplemented by five agreements (politically important, but non-binding) on areas where it is necessary to ensure uniform arrangements for relations between the UK Government and the three devolved administrations.

8. Two of these agreements, known as concordats, cover International Relations and European Business. They provide the basis for the working relationship between the FCO and the devolved administrations and set out the obligations into which the FCO have entered.

9. The international relations concordat covers:

exchange of information
formulation of UK policy and conduct of international negotiations
implementation of international obligations
co-operation over legal proceedings
representation overseas
secondments and training co-operation
visits
public diplomacy, British Council and the BBC world service
trade and investment promotion and
diplomatic and consular relations.

10. The EU concordat covers:

provisions of information
formulation of UK policy
attendance at Council of Ministers and other related meetings
implementation of EU obligations and
infraction proceedings.

11. The text of the Memorandum of Understanding and the concordats can be found on the Ministry of Justice website (click here for the MoU ).

12. Under the Concordats, the FCO has agreed, amongst other things, to:

exchange information
consult the Devolved Administrations about policy formation and the implementation of international commitments that affect them and
provide assistance with devolved visits overseas (see overseas visits below).

13. FCO departments are responsible for ensuring that Concordat obligations are implemented, where devolution has a bearing on their work. PRT is responsible for managing the FCO's overall relationship with the devolved administrations with regard to legislative business only. The FCO's corporate relationship with the devolved administrations is managed by the Stakeholder Engagement Team in Corporate Communication Group who provide advice and guidance on handling business, including overseas visits, with the devolved administrations and the respective Territorial Offices in London (see Chapter 15). EU Communications Team co-ordinates the FCO's participation on the Whitehall Constitution Committee (CN) which deals with devolution policy issues.

Devolved administrations - Devolution Guidance Notes

14. The Constitutional Policy Team in the Ministry of Justice has published a number of guidance notes to help departments with the practicalities of working with the devolved administrations. They form part of a series of Devolution Guidance Notes (DGNs) which cover amongst others

common working arrangements
handling correspondence under devolution
the role of the respective territorial Secretaries of State and
post Devolution Primary legislation affecting Scotland, Wales and Northern Ireland.

15. To support this, a checklist for staff has also been produced and endorsed by the Prime Minister and the heads of the three devolved administrations outlining a list of "Dos and Don'ts" when dealing with the administrations.

16. The following documents can be found on the PRT - Department Documents section of the FCONet:

Chapter 15 - Relations with the Devolved Administrations

Introduction

1. Directorate restructuring on 1 April 2007 led to a change in the way the FCO engages with the Devolved Administrations (DAs). Parliamentary Relations and Devolution Team dropped the D to become Parliamentary Relations Team. Stakeholder Engagement Team in the Corporate Communication Group (CCG) is now the lead FCO Team in our dealings with the DAs on non-constitutional/parliamentary issues. However, PRT is still involved and leads on all parliamentary/legislative aspects of the FCO's engagement with the DAs, and the EU Institutions Team leads on coordination of Cross-Whitehall policy specific issues, including the CN (Constitution committee of the Joint Ministerial Committee - see Devolved Administrations - Joint Ministerial Committees).

Devolved Administrations - handling overseas visits

2. Devolved Ministers, their officials, and members of staff of the devolved legislatures make visits overseas quite frequently. There are approximately 30 devolved Ministers (and 8 Scottish Deputy Ministers) able to travel. They often require no FCO assistance for these, though they have agreed to notify us of their plans. Considerable co-ordination is required within the DAs to ensure that they let the FCO know in good time about overseas travel commitments for their Ministers. Under the terms of the concordats, the FCO has agreed to provide appropriate support when requested. The FCO has agreed that the Devolved Administrations should notify Stakeholder Engagement Team of visits in the first instance. Stakeholder Engagement Team notifies desks and Posts about timing, political sensitivities etc. Once these issues are resolved, Posts should liaise direct with the Devolved Administrations, keeping Stakeholder Engagement Team informed of substantive issues.

3. The DAs have a wide range of bilateral contacts, e.g. with national and sub-national governments, regional authorities and European bodies. But they will often want Posts to make arrangements for visits. On the other hand, Posts may on occasions, not be involved with the arrangements for visits by devolved Ministers due to the individual preference of the Ministers concerned. Posts should offer a similar level of assistance for such visits as they would for visits by UK government ministers. Stakeholder Engagement Team asks the Devolved Administrations to notify Stakeholder Engagement Team about proposed overseas visits, regardless of whether they require FCO assistance, so that Posts can be informed and visit proposals cleared with them in advance.

4. This sometimes also includes co-ordinating the necessary clearance of draft Memoranda of Understanding to be signed during the visit. Under the terms of the International Relations Concordat between the UK Government and the Devolved Administrations, the DAs are responsible for consulting the FCO on making arrangements or agreements with foreign counterpart organisations, ensuring that agreements do not purport to bind the UK in international law, affect the conduct of international relations or prejudice UK interests.

5. Posts should be as helpful as is practicable and can charge for services rendered, according to the SLAs (Service Level Agreements) set-up by Finance Directorate. If requests for FCO/Post help are unrealistic, e.g. received too late, unnecessary, or unmanageable - it is important that we let them know this early. There is scope for Posts to exploit visits to further their own objectives. They can assist by putting programmes together for devolved Ministers, identifying suitable contacts, providing local briefing etc. Devolved Ministers travel overseas primarily to develop their administration's policy on a particular devolved issue, drawing experience and learning from systems in other countries. Like UK Ministers, devolved Ministers travel overseas principally in pursuit of their ministerial responsibilities.

6. It is also important to consider the context in which the FCO helps the Devolved Administrations overseas. Under the devolution settlement, whether an administration decides to include a political element in its Ministerial visits, and how it wishes to do that, is ultimately at its discretion. So Posts need to consider carefully the advice they provide. Experience suggests that a provisional programme, once submitted to devolved Ministers, becomes difficult to revise later. So it is important to consider the political implications of any recommendations before offering advice. This is all the more important when dealing with host states sensitive to principles such as devolution, transferring central powers to regions or autonomous territories. More detailed guidance on Devolved Administrations overseas can be found later in this chapter.

7. In some countries (see annex), Devolved Administrations have established permanent offices. In such cases, these offices will normally be responsible for organising visits by devolved ministers and officials. The local Embassy or consulate should be prepared to offer advice or other support as necessary in line with the guidance above.

8. In addition to ministerial travel, and in line with the FCO's obligations to Westminster Committees, the FCO also assists Committees of the devolved legislatures when they travel overseas. These are much less common than ministerial visits. The majority of committee requests for assistance to date have come from the Northern Ireland Assembly.

9. Posts should operate on the basis of a full cost recovery policy for the provision of services to the Devolved Administrations and their Committees, in line with guidance on handling visits by UK Ministers and Committees (see handling visits above). This would include costs such as transport, translation of documents, interpreters and accommodation.

Devolved Administrations - contacts

10. The various agreements mentioned above are founded on the principle that the Government at Westminster will co-operate with the Devolved Administrations in international activity and in the administrations' pursuit of their international priorities in particular. Therefore, departments need to ensure

effective exchange of information; and
early consultation on UK policy formulation where issues touch upon devolved matters.

11. Liaison points in the administrations are contained in the Annex 15B. [NB: Not included due to data protection of individual staff names and contact details]

Devolved Administrations - advice

12. Stakeholder Engagement Team is responsible for managing the FCO's overall relationship with the Devolved Administrations and can provide advice and guidance on handling business with the Devolved Administrations and their respective Territorial Offices in London.

Devolved Administrations - overseas activities

13. This section is designed to give FCO departments and Posts a better idea about the kind of activity undertaken by the Devolved Administrations (DAs) overseas. It contains information designed to assist departments and Posts about the best way to engage with the DAs when making arrangements for the smooth running of events, visits and general external relations business. All three DAs and Territorial Departments were consulted on the content of the section, and agreed on the mechanisms for cooperation.

14. UK foreign and EU policy-making is reserved to the UK Government, but the Devolved Administrations have an interest in external relations with devolved Ministers and Directorates responsible for overseas activity. Such activity can give excellent opportunities to further FCO objectives and those of the DAs. The FCO encourages Posts in countries with identifiable links to Scotland, Wales or Northern Ireland to include the DAs in their strategy for developing relations with their host country.

15. As devolution becomes more established, the DAs' have placed more importance on their external relations work; more recently the legislatures have increased their interest too. The primary focus of the DAs is on the Commission and EU Member States, and their interest is supported by their full-time staff who are based in their offices in Brussels. Key EU issues for them include structural funds, agriculture (CAP reform), fisheries and the environment. The DAs are widening this field further for example to US and North/South East Asia Pacific, where the Devolved Administrations have long established trade and investment offices.

16. The Scottish Executive launched in April 2008 its International Framework and draft European Action Plan, as seen on the Scottish Government Publication's Website. The Scottish Executive has produced a number of other strategies which loosely set out its ambitions of working with other countries. The Welsh Assembly Government is working towards producing its own external links strategy and already has a Wales for Africa strategy. The Northern Ireland Executive's Programme for Government 2001 has as one of its key themes the development of North/South, East/West and wider international links. Further information about the strategies can be found on the following websites:

The Scottish Government
Welsh Assembly Government
Northern Ireland Executive

Devolved Administrations - how the machinery works

17. Each Devolved Administration has at least one division responsible for liaising with Parliamentary Relations Team and Stakeholder Engagement Team and, very often, direct with other FCO departments and Posts. These divisions are directly accountable to devolved Ministers with responsibility for external relations - a portfolio usually shared by the First Minister and other Minister(s). The DAs also have overseas representation:

Each Devolved Administration, and two of the devolved legislatures, have offices in Brussels which are accredited to UKREP
the Scottish Executive has a Counsellor (Scottish Affairs) North America within the British Embassy in Washington, and has a First Secretary for Scottish Affairs in Beijing
Wales has a dedicated Wales Officer at our Consulate General in Chongqing
Northern Ireland has had representation in Washington, through the Northern Ireland Bureau, since 1995
Their respective trade and investment arms - Scottish Development International (SDI), the Welsh Assembly Government's International Business Wales (IBW), and Invest NI - also have a number of staff based in their overseas offices.

18. It is important to understand the legal status of representatives of DAs who enjoy diplomatic status (i.e. are formally accredited to the host country). While line management relationships will be to their parent departments back home, diplomatically accredited DA representatives are formally under the responsibility of the Ambassador in the way that all Embassy staff are.

19. The DAs are responsible for a wide range of socio-economic issues including trade and investment activity. They are represented on the Board of UK Trade and Investment (UKTI). UK Trade and Investment Posts should maintain close contact with the DAs to ensure that their interests are appropriately reflected in their Business Plans, and are able to advise on specific initiatives. For inward investment activity existing `International Business Development Forum (IBDF previously known as COP) Guidelines' provide detailed advice on in-country operations and company engagements.

20. FCO departments and Posts should keep Stakeholder Engagement Team informed of overseas activities involving the Devolved Administrations. The three Territorial Departments - the Scotland Office, Wales Office and Northern Ireland Office - all retain varying degrees of responsibility for matters concerning the Devolved Administrations. In some cases they are involved in overseas promotion work. Departments and Posts should also ensure that the appropriate Territorial Departments and the Ministry of Justice are kept in the loop on matters of significance or contention. The main contacts for external relations matters in the Devolved Administrations and the Territorial Departments are listed in Annex 15B.

Devolved Administrations - overseas events

21. The Devolved Administrations are involved in a limited number of high profile overseas promotional events. Usually the initiative for undertaking such an event has come from the DAs. The following points, which have been agreed with the Devolved Administrations, should be borne in mind:

there should be early agreement between the Administration and Posts of clearly defined and realistic objectives and continuing involvement of Post throughout the planning stages, during the event itself, and for any follow up. Posts may like to consider whether the event could also contribute to FCO objectives
the Administrations should seek Ministerial approval and representation for major events. Posts will wish to assure themselves that the relevant DA ministers are committed to the project
Posts should be aware that Ministers from the Devolved Administrations are likely to take a keen interest in the detailed planning of overseas events. In many cases, Posts may find themselves less `in the driving seat' than might be expected if organising an event for the FCO or another Government Department
partly for that reason, both sides should be clear about what each can bring to the table. Posts should set out what is and is not achievable; they should discuss and then set out clearly the division of labour between the DAs and the Post. The DAs should be asked to set out clearly what they are looking to the Post to provide, including the extent to which the Post should operate proactively
the relevant Territorial Departments should be kept in the loop in the initial stages of discussions
it is important for a single point of contact to be established on each side at an early stage in planning the event, to ensure clear lines of communication
effective media coverage is important and the administrations rely on the help of Posts to achieve this. Posts should also feed in press lines, in consultation with the Devolved Administrations, to the FCO Press Office, during and after an event. Press Office liaise with their counterparts in the DAs to ensure that appropriate lines can be deployed to project a positive image of a successful event or visit or if necessary deflect criticism. They are eligible for the same high level treatment a UK Minister would expect.
funding: in addition to any FCO funds, reciprocal resource contributions from the DAs should be discussed/agreed in advance of any event taking place. Posts should channel all discussions over resources through the relevant divisions of the Devolved Administrations in the first instance.

Devolved Administrations - inward visits to the DAs

22. The Devolved Administrations receive frequent requests from politicians and officials from overseas to visit Scotland, Wales and Northern Ireland. Some of these visits are channelled via Posts, some come directly from other regions or governments, and some from other sources. External Relations departments or equivalent divisions of the Devolved Administrations make arrangements for such visits, wherever possible tailoring programmes to the visitors' stated interests.

23. Posts and departments should as a matter of routine consider including calls on the Devolved Administrations and the Territorial Departments in visitors' programmes, where there are potential business benefits for either the DAs or the visitors.

Devolved Administrations - the Territorial Departments: Scotland Office, Wales Office, Northern Ireland Office

24. The three Territorial Departments undertake minimal international activities, mainly in the form of ministerial visits. The Northern Ireland Bureau also sometimes works closely with the NIO and the British Embassy in Washington with regard to NIO Ministerial visits to the US.

Requests for access to FCO Ministers during consular crises

25. During consular crises the Devolved Administrations may request briefings on the situation from FCO Ministers. Officials continue to brief Devolved Administration Ministers as a matter of course during crises, and FCO Ministers do so at their own discretion, in line with our current approach. All briefings are subject to personal data protection restrictions.

Devolved Administrations - publications and public relations

26. There is considerable interest in the UK devolution experience, particularly from other European countries. In response, the DAs and Territorial Offices have produced some public diplomacy material for general use. Posts should consider inclusion of tailored material about UK devolution on their website, and include hyperlinks to the various Devolved Administrations, parliamentary and Assembly websites as well. Stakeholder Engagement Team will be happy to clear any text, as will the Devolved Administrations.

Devolved Administrations - general information about devolution

27. The Ministry of Justice has produced Devolution Guidance Notes on handling working arrangements with the Devolved Administrations. General guidance on devolution can be downloaded from the Ministry of Justice and Devolved Administration websites:

Devolution in Practice: A Checklist for Officials
Devolution in Practice: Statement by the Prime Minister and Heads of the Devolved Administrations. Here is a copy of the statement referred to in this document.
Northern Ireland: Restoration of Devolution: Guidance

There is some further Devolved Administration guidance at the Ministry of Justice website.

28. Posts are encouraged to share their experiences of dealing with the Devolved Administrations with each other, in particular, forewarning about possible difficulties, but also sharing skills and knowledge. This information sharing could be with other Posts from neighbouring regions who have had some experience of dealing with devolved Ministers for example, or might involve Posts like Washington, Dublin, Rome or Madrid who deal with a high level of devolved visits and events.

29. For more advice on any of these issues, staff should contact the Stakeholder Manager for the Devolved Administrations in Stakeholder Engagement Team on 020 7008 3846.

Devolved Administrations - use of nomenclature

30. We take a sensible and common sense approach to the use of the nomenclature of the Devolved Administrations. The principal example where the issue has arisen in the past is that of the use of "Scottish Government" in the US, where the term is acceptable in informal contact with the US Administration and by extension the Canadians and other governments. However, with diplomatic accreditation, the MoJ guidance states that the correct nomenclature is “Scottish Executive”, which is the form that should be used in official communications. The same rule applies to the other Devolved Administrations.

Devolved Administrations - Joint Ministerial Committees

31. The Joint Ministerial Committee (JMC) is a forum whereby the UK Government and the Devolved Administrations can meet and discuss matters relating to devolution. The terms of reference of the JMC is outlined in the Memorandum of Understanding (click here for the MoU and include:

To consider non-devolved matters which impinge on devolved responsibilities, and devolved matters which impinge on non-devolved responsibilities.
Where the UK Government and the Devolved Administrations so agree, to consider devolved matters if it is beneficial to discuss their respective treatment in the different parts of the UK.
To keep the arrangements for liaison between the UK Government and the Devolved Administrations under review.
To consider disputes between the administrations.

Devolved Administrations - Dealing with NSID (EU) Correspondence

32. What is NSID (EU) correspondence?

The UK line in European negotiations needs to be agreed collectively where the matter in question affects the responsibilities of more than one Department. Correspondence between the responsible Minister and the members of the Cabinet Committee on European Policy (known in Cabinet Office jargon as 'NSID (EU) Committee': Ministerial Committee on National Security, International Relations and Development, Sub-Committee on Europe) is the usual means by which agreement is obtained.

33. When is NSID (EU) correspondence necessary?

NSID (EU) correspondence is used to determine UK policy on EU issues. This is a matter for the judgement of the lead Department on a case by case basis, but usually the agreement of NSID (EU) is sought for the initial line to take in negotiations, if a significant change in the UK's line is proposed, and towards the end of negotiations if a compromise position emerges. NSID (EU) clearance should be sought for negotiating lines on matters which could impact on other Departments, or which are likely to have implications for the Government's strategic EU policy priorities.

34. What about the Devolved Administrations?

They are not members of NSID (EU) Committee and so will not receive Departments' contributions to NSID (EU) correspondence. A separate letter should be sent directly to the relevant DA Minister, written in the same terms as the original NSID (EU) ministerial letter. The original NSID (EU) letter should read `I am writing in similar terms to the Devolved Administrations'.

Similarly, the Devolved Administrations should not be copied into the Foreign Secretary's round up letter. They should be informed separately of the result of the Foreign Secretary's round-up letter by the originating Department. The following line should be added to the Foreign Secretary's round-up letter to the responsible Minister: “I assume you will inform the Devolved Administrations of the outcome of this correspondence”.

Note that letters to the Devolved Administrations must always be copied to the relevant co-ordinating departments in Whitehall (i.e. the Scotland Office for the Scottish Executive).

For more guidance on handling devolved matters, please contact the relevant European and Global Issues Secretariat desk officer via the Cabinet Office website.