Who Governs Scotland?

Who Governs Scotland?

This book addresses the premise that the question of who governs Scotland has become increasingly ambiguous, due in part to European integration, globalisation and devolution within the UK. It argues that although the concept of multi-level governance helped illuminate regionalism with the EU, it was not an appropriate model for Scotland. In particular, this book argues that the pragmatic arrangements that underpinned inter-governmental relations between Scotland, the UK and the EU are inadequate, and that Scotland’s international profile has markedly changed in the aftermath of devolution. Alex Wright asks whether the EU itself should regionalise more radically in functional areas of policy. In turn, this is allied to the notion that the Scottish Executive itself has increasingly adopted its own ‘low-politics’ foreign affairs’ agenda, both in relation to the EU and internationally, in functional areas of policy. The author suggests that this could be conceptualised as ‘functional regionalism’, and as such, it offers a more suitable conceptual model than multi-level governance, as far as Scotland is concerned. This well researched and powerfully argued book adds greatly to the debate on constitutional reform, and offers invaluable insight into the Scottish parliament’s foreign affairs agenda. It offers an illuminating read to students, policy-makers and politicians. Alex Wright is Lecturer in Scottish, UK and EU Politics at the University of Dundee.

Routledge Advances in European Politics 1 Russian Messianism: Third Rome, revolution, communism and after Peter J.S. Duncan 2 European Integration and the Postmodern Condition Governance, democracy, identity Peter van Ham 3 Nationalism in Italian Politics The stories of the Northern League, 1980–2000 Damian Tambini 4 International Intervention in the Balkans since 1995 Edited by Peter Siani-Davies

13 European Union Council Presidencies A Comparative Perspective Edited by Ole Elgström 14 European Governance and Supranational Institutions Making States Comply Jonas Tallberg 15 European Union, NATO and Russia Martin Smith and Graham Timmins 16 Business, The State and Economic Policy The Case of Italy G. Grant Amyot

5 Widening the European Union The politics of institutional change and reform Edited by Bernard Steunenberg

17 Europeanization and Transnational States Comparing Nordic Central Governments Bengt Jacobsson, Per Lægreid and Ove K. Pedersen

6 Institutional Challenges in the European Union Edited by Madeleine Hosli, Adrian van Deemen and Mika Widgrén

18 European Union Enlargement A Comparative History Edited by Wolfram Kaiser and Jürgen Elvert

7 Europe Unbound Enlarging and reshaping the boundaries of the European Union Edited by Jan Zielonka

19 The European Union and E-Voting Addressing the European Parliament’s internet voting challenge Edited by Alexander H. Trechsel and Fernando Mendez

8 Ethnic Cleansing in the Balkans Nationalism and the destruction of tradition Cathie Carmichael 9 Democracy and Enlargement in PostCommunist Europe The democratisation of the general public in fifteen Central and Eastern European countries, 1991–1998 Christian W. Haerpfer 10 Private Sector Involvement in the Euro The Power of Ideas Stefan Collignon and Daniela Schwarzer 11 Europe A Nietzschean Perspective Stefan Elbe 12 European Union and E-Voting Edited by Alexander Trechsel and Fernando Mendez

20 Gender Politics and Society in Spain Monica Threlfall, Christine Cousins and Celia Valiente 21 European Union Negotiations Processes, Networks and Negotiations Edited by Ole Elgström and Christer Jönsson 22 Evaluating Euro-Mediterranean Relations Stephen C. Calleya 23 The Changing Face of European Identity A Seven-Nation Study of (Supra)National Attachments Edited by Richard Robyn

Who Governs Scotland?

Alex Wright

First published 2005 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Ave, New York, NY 10016 Routledge is an imprint of the Taylor & Francis Group This edition published in the Taylor and Francis e-Library, 2005. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” © 2005 Alex Wright All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. The publisher makes no representation, express or limited, with regard to the accuracy of the information contained in this book and cannot accept any legal responsibility or liability for any errors or omissions that may be made. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data A catalog record has been requested ISBN 0-203-49969-7 Master e-book ISBN

ISBN 0–714–65513–9 (Print Edition)

For Caroline, Mike, Rosie and Millie

Contents

Preface Acronyms 1 Who governs Scotland?

ix xiii 1

2 An emerging political arena

10

3 The chimera of multi-level governance

25

4 Scotland and the EU’s structural Funds

37

5 1973–1999: a Westminster by-pass?

51

6 1999: business as usual?

67

7 Territorial mobilisation in the EU and beyond

84

8 2003: A Scottish foreign policy?

98

9 Functionalism, subsidiarity and the denizen of the deep

117

10 The EU and international affairs: drivers for autonomy?

131

Notes Bibliography Index

142 180 190

Preface

The research for this book started in 1993, a year after the Conservatives were returned to office at Westminster and constitutional change appeared as distant as ever. Even so, following Maastricht it was clear that the EU and its policies were having an ever increasing impact on Scotland. In addition, the SNP’s call for Scottish independence in Europe raised the prospect that Scotland would be better off seceding from the UK and becoming a member state of the EU in its own right. Cumulatively, these various dynamics formed the kernel of the original research project which ran from 1993 until 1997. This explored the following hypotheses: that Scottish organisations and institutions by-passed ‘London’ at times and dealt with the EU direct; that they had undergone structural re-organisation as a result of the EU; that they had formulated an EU strategy; and that they possessed the potential to influence the EU. The subsequent study proved to be something of a Herculean task. Part of the research was through interviews with officials in governmental bodies and agencies (e.g. the former Scottish Office, the Regional Councils, with the exception of Tayside, the Enterprise Companies and other quangos). Interviews were also conducted with peak associations such as CBI Scotland and the STUC and with a plethora of pressure groups along with multinational companies such as BP. In themselves interviews are vulnerable to bias (both the author’s and the interviewee’s). To offset that as much as possible, I used official papers at the Scottish Records Office and government publications. In order to explore Scotland’s relations with the EU in more detail, two areas of policy were examined rather more intensely: the structural Funds and the Common Fisheries Policy (CFP). The net result was a wide-ranging study, which was completed in 1997. It concluded that Scotland’s influence in the EU was quite limited. But by then, Labour had won its election victory and Scotland looked set to have its own parliament once again. Consequently, further research was undertaken in order to ensure that this book would be something of a comparative study. The first phase ran between 1998 and 1999. It followed the evolution of the new constitutional arrangements and it assessed how they might affect Scotland’s relations with the EU. The second phase ran from 1999 to 2003. It assessed how Scotland conducted its relations both with the EU and with the wider world during the parliament’s first four-year term.

x Preface As such the latter can be no more than a preliminary study. Despite the book’s thesis that Scotland lacks sufficient political authority in relation to international affairs and that potentially this has ramifications for the current constitutional settlement, it is already apparent that Scotland’s international profile has increased markedly after devolution. Thus, there is cause for optimism as to what the future holds. This book could not have been written without the assistance and support of many people. I am very grateful to the many anonymous civil servants and other public officials who have been kind enough to be interviewed (sometimes on several occasions) and who, where so permitted, have supplied me with official papers. The research into the Scottish fishing sector and the CFP would not have been possible without Bob Allan, who when chief executive of the Scottish Fishermen’s Federation (SFF), gave me unrestricted access to the SFF’s archive on the CFP dating back to 1973. The SFF also allowed me use of their facilities during my six months of research at their offices. The case study on the structural Funds would not have been possible but for the support of Scotland’s Regional Councils, Cosla, the structural Fund management teams and officials at the DTI, the Scottish Office, the Enterprise Companies and the European Commission. Despite a heavy workload, senior figures in Scottish pressure groups have been extremely generous with their time when responding to requests for interviews and for information. I would also like to thank Professors K. Middlemas and H. Wallace, at the Sussex European Institute, the University of Sussex, for allowing me to use research data during 1994. More particularly, I am acutely aware of the breadth and the quality of the scholarship by others that has been undertaken with regard to both Scotland’s involvement in international affairs and on regionalism, more generally. Examples include: Regions in the European Community (Keating and Jones 1985), The European Union and the Regions (Jones and Keating 1995), The Regional Dimension of the European Union. Towards a Third Level in Europe? (Jeffery 1997a), Paradiplomacy in Action. The Foreign Relations of Subnational Governments (Aldecoa and Keating 1999). Much of this work has been cited in chapters two, three and seven of this book. The latter especially would not have been possible without such excellent analytical studies. At a personal level, I would like to thank Peter Lynch, Lindsay Paterson and Norrie MacQueen. Each of them kindly commented on the book’s structure, when I first drafted its proposed layout, and they offered me a number of good suggestions, which I duly took up. Thanks also to James Mitchell, David Millar and Sean Loughlin for their support over the last few years. Last, but by no means least, I would like to express my gratitude to John Berridge, who taught for thirty years at the and without whom this book would not have been written, I think. Undertaking research is by no means cheap. I was extremely fortunate to be awarded the Queen’s College Scholarship by the , thereby covering the cost of my studies between 1994 and 1996. The Friends’ Property Trust also assisted me financially during 1993–4 as did the Carnegie Universities

Preface xi Trust. The latter subsequently provided me with a travel bursary during 2002. That enabled me to go back and forth from Arbroath, when I held a visiting research fellowship at the Institute for Advanced Studies in the Humanities at the University of Edinburgh. The staff there could not have been more helpful. The fellowship was particularly valuable for me, as I was able to draw on the excellent resources at the University Library and the Europa Institute. I was also able to continue examining official papers at the Scottish Records Office, together with Scottish periodicals dating back to 1957 at the Scottish National Library (extracts from which have been cited in this work). That I was able to put this to some use was the result of an excellent course on historical research methodology, which was provided by the Institute of Historical Research in London in 1994. In sum, therefore, whilst this book is the result of ten years’ research, I am acutely aware of how much it is also a by-product of the generosity and the scholarship of many others. Alex Wright, Department of Politics,

Acronyms

AC AER BIC CAP CAREC CBI CFP CoR COSLA CLRAE CPMR DEFRA DTI EC ECJ EDP EEZ ELO EP ERDF EU FCO FRG JMC JMCE MAFF MAGP MEP MLG MP MOU MSP

Autonomous Communities Association of European Regions British-Irish Council Common Agricultural Policy Inter-governmental Conference for Affairs Related to the European Communities Confederation of British Industry Common Fisheries Policy Committee of the Regions Convention of Scottish Local Authorities Conference of Presidents of Regions with Legislative Powers Conference of the Peripheral Maritime Regions Department of the Environment, Food and Rural Affairs Department of Trade and Industry European Community European Court of Justice Europeanisation of Domestic Policy Economic Exclusion Zone European Liaison Officer European Parliament European Regional Development Fund European Union Foreign and Commonwealth Office Federal Republic of Germany Joint Ministerial Committee Joint Ministerial Committee Europe Ministry of Agriculture Fisheries and Food Multi-Annual Guidance Programme Member of the European Parliament Multi-Level Governance Member of Parliament Memorandum of Understanding Member of the Scottish Parliament

xiv Acronyms NDPB NFFO NFUS NORPEC QMV PP PQ RAC RETI RSPB SCU SDA SEA SFF SLF SMSAs SNE SNP SPD SOAFD SOED STUC SSGA SWA TAC TEU WWF UK UKRep

Non-Departmental Public Body National Federation of Fishermen’s Organisations National Farmers Union Scotland Network of Regional Parliamentary European Committees Qualified Majority Voting Popular Party Partie Quebecois Regional Advisory Councils Association of European Regions of Industrial Technology Royal Society for the Protection of Birds Scottish Crofters Union Scottish Development Agency Single European Act Scottish Fishermen’s Federation Scottish Landowners Federation Member States and Sub-Member State Administrations Sub-national Entity Scottish National Party Single Programming Document Scottish Office Agriculture and Fisheries Department Scottish Office Education Department Scottish Trades Unions Congress Scottish Salmon Growers Association Scotch Whisky Association Total Allowable Catch Treaty on European Union World Wildlife Fund United Kingdom United Kingdom Permanent Representation

1

Who governs Scotland?

As our car drove up to the real West Wing with myself and the British Ambassador, I did reflect on the fact that this was no small honour for our small nation. It became very apparent very quickly however that the President does have a special fondness for Scotland, stemming in part from time spent here in his youth. (Henry McLeish 2001)1

The image of Scotland’s First Minister visiting the White House for an audience with the US President was somewhat surreal in 2001. Yet it seemed to symbolise how much had changed in so little time. Now that Scotland had its own parliament, for a brief moment it appeared that the country was once again master of its own destiny. Yet as a good many Scots soon discovered, ‘the parliament did not have the powers to meet their expectations’ (Mitchell 2001: 48). Whilst the parliament would be responsible for ‘domestic’ matters such as education and health, other areas of policy which also fell within its competence, such as fisheries were for the most part determined not in Edinburgh nor even necessarily in London but more so in Brussels. Thus, although 1999 appeared briefly to have been something of a turning point for Scotland, more latently that was not necessarily so. In turn, that raises the question as to whether devolution is ‘unfinished business’, the underlying issue being whether the country possesses sufficient autonomy.2 This has long been a hallmark of Scottish–UK relations, with some arguing that Scotland enjoyed a fair degree of self-government prior to 1999 under what was then termed ‘administrative devolution’.3 For instance, Kellas (1989) maintained that Scotland had its own distinctive political system and it possessed a measure of autonomy within the UK.4 He was by no means a lone voice.

Scottish autonomy within the UK Although Mrs Thatcher may have been culpable of penetrating the soft underbelly of administrative devolution, that rather underestimates its potency during the previous 50 years or so. Bulpitt (1983) argued that for many years a ‘dual polity’ had existed within the UK and that in essence both polities led somewhat separate existences. The UK polity concentrated on issues of high politics (e.g. defence and

2 Who governs Scotland? foreign policy), whilst the territorial polities in Scotland, Wales and Northern Ireland focused on low politics (e.g. transport and economic planning). The existence of the dual polity was dependent on a number of variables, of which two were particularly significant. First, the government in London was reliant on the acquiescence of local elites who administered these territories. According to Bulpitt that began to fracture when the UK government launched its modernisation initiatives in the 1960s and 1970s, thereby encroaching not only on the autonomy of local elites but also calling into question their ability to govern effectively. Secondly, for the dual polity to persist there needed to be an amenable external environment. Empire was one example which united both the territories and the ‘centre’,5 so too were the 1914–18 and 1939–45 wars. According to Bulpitt the reverse applied to the EU, in part because it fractured elite consensus in London during the 1970s. From this perspective, it could be argued that as European integration gathered pace, it added to the pressure on the dual polity and, so too, on administrative devolution. Yet Bulpitt remained cautiously optimistic about the robustness of the dual polity, arguing that in practice it survived the tumults of the 1970s and that it was largely unaffected by the rise in Scottish nationalism during that era. That said, he also recognised that the informality of administrative devolution could be its own undoing. The centre lacked any legitimating support structure in the peripheries other than the existence of territorial bureaucracies.6 Could it hold up if it came under sustained pressure? As the years of the Conservative governments demonstrated between 1979 and 1997, the answer was ‘not necessarily’. Some clearly had misgivings. Midwinter et al. (1991) maintained that not only was Scotland’s autonomy open to question but that the Union with the UK was increasingly ‘under stress’. Paterson (1994) stood rather closer to Kellas in relation to the period before the 1970s, but by the time Mrs Thatcher became Prime Minister, he too had his reservations. Brown et al. (1996) also had their doubts. Such arguments may have been consigned to history as far as ‘New Labour’ is concerned (the party which oversaw constitutional change in 1999), but whether legislative devolution as it now stands offers Scotland sufficient autonomy rests in the eye of the beholder. In so doing, potentially, ‘the constitutional question’ continues to haunt relations between London and Edinburgh. As Mitchell observed, it ensures that post-1999 there is no such thing as consensus politics within Scotland, as some had once hoped.7 Although it is too early to arrive at a definitive judgement over how much autonomy Scotland actually possesses as a result of constitutional reform, there are grounds for supposing ‘not enough’. In the first instance, this is inimically connected to the issue of financial resources – at the time of writing the bulk of this originates from the UK Treasury. The parliament8 does have a tax-varying power but to date it has not been used and, even if it was, at plus or minus 3 per cent, this does not amount to much. Financially, therefore, the Scottish government is dependent ultimately on the largesse of whichever party is in office in London,9 though for those who believe that the country cannot pay its way if there were to be fiscal autonomy, that dependency is no bad thing. Even so, legally, the Scottish

Who governs Scotland? 3 parliament (also sometimes referred herein as ‘Holyrood’) is a subordinate institution to Westminster. The Scotland Act (1998) was a product of the parliament in London, and in passing this act, it was indicative of Westminster’s ‘sovereignty’ – something that was made quite clear in the 1997 White Paper.10 Yet sovereignty may not amount to much in practice. Rather, ‘post-sovereign’ might be a more apt description on the assumption that today no single institution or state enjoys a monopoly of power vis-à-vis a given territory. That is especially so when taking the EU into account.11 This too has ramifications for Scottish autonomy, not least because it calls into question ‘who governs Scotland?’12 Is it Holyrood, Westminster or Brussels, or should we also consider actors beyond the EU as well?

Who governs Scotland? In practice Holyrood, Westminster and the EU all have an involvement in Scotland’s government. But is there a hierarchical chain of competencies (i.e. powers), with Edinburgh at the bottom tier, London in the middle and Brussels at the top, or is it more ‘intricate’ than that – especially regarding the interface between the Scottish and UK governments?13 Under The Scotland Act (1998) Westminster can enact legislation regardless of whether this falls within competencies which have been devolved to Holyrood.14 Moreover, a number of powers have been reserved to Westminster and, where that is so, the latter retains competence.15 But Westminster is itself subordinate in terms of its law making powers, where competence has been assigned to the EU.16 Amongst the reserved powers, foreign relations is of particular significance because it also includes relations with the EU. The UK’s membership of the EU therefore poses something of a conundrum, given that the re-establishment of a parliament in Edinburgh was intended to provide Scotland with greater autonomy. As decisions taken in Brussels affect Scotland increasingly,17 it could be supposed that now Scotland possessed its own parliament, formally, it should have a measure of competence for foreign affairs. Yet, as far as inter-governmental channels are concerned, formally, the government in London is responsible for promoting and defending Scotland’s interests in the EU’s Council. Consequently, it could be suggested that as Scotland continues to be indirectly represented (i.e. by the UK government) in the Council of the EU18 (hereafter mostly referred to simply as the Council) – a body which continues to enjoy considerable power – its autonomy is open to question. However, the issue of who fights for Scotland in the EU is not that simple. Ministers at the former Scottish Office19 could not avoid becoming entangled in European matters. For instance, they attended meetings of the Council, and on occasion they played a not insignificant role as part of the UK delegation. Sometimes those ministers enjoyed their successes, as was so in 1984 with the Danish by-catch,20 and at other times they suffered reverses. For example, the Iberians were incorporated into the Common Fisheries Policy during the 1990s against the wishes of Scottish ministers, who were powerless to do much about it. Either way, the Scottish Office (herein sometimes referred to as St Andrew’s

4 Who governs Scotland? House) has long taken a close interest in European matters, even if the outcome did not necessarily go its way.

Scottish autonomy in the EU Scotland’s relations with the EU have for some years now been a source of academic debate. One of the earliest concerns was whether the Scottish Office would open direct links with the EU in the aftermath of the UK’s accession in 1973. That such a topic merited attention should come as little surprise, as it coincided with the first (doomed) steps towards legislative devolution during the 1970s. The underlying issue was whether this might be to Scotland’s detriment because it risked undermining the relationship between St Andrew’s House and the government departments in Whitehall (some of which were responsible for representing Scottish interests in the EU). Kellas (1977) believed that the Scottish Office’s capacity to develop its own relations with Brussels was dependent on the level of trust that existed between it and the ‘lead’ ministries in London.21 By implication they acted as ‘gatekeepers’. But he also warned that this bond might be undermined if power were devolved to Scotland. If that were so, given the pivotal role of state governments in the EU, Scottish influence in Brussels could be eroded. Kellas’ point retains its salience at the time of writing, where trust and goodwill remain the lynchpins of the current constitutional arrangement. Archer and Main (1980), the editors of Scotland’s Voice in International Affairs, sailed a parallel course to Kellas. Here too the Scottish Office had a key role to play by virtue of its links with departments in London. They not only believed that it was extremely effective, they also believed that it enjoyed better access to the EU than would be the case under a devolved or federal arrangement.22 Hence, early works on Scotland and the EU implied that the then-current set-up worked in Scotland’s favour and constitutional reform, whatever configuration it took, short of outright independence (which they did not address), would be a change for the worse. Others were more circumspect, however. Keating and Waters (1985) were ambivalent over the role of St Andrew’s House. On the one hand, they wondered if Scotland could be worse off if it was not ‘retained in some form’ in the aftermath of constitutional reform.23 The underlying assumption here is presumably that London would still act as gatekeeper, with the result that there needed to be a territorial branch of the UK government in Scotland. But they did raise questions about its influence at that point in time. In part, this was because its ministers and officials could be outranked by their counterparts in Whitehall. This rested on the premise that, compared to departments in Whitehall, the Scottish Office was small in terms of the size of its staff but wide in terms of its responsibilities.24 That was a moot point. If those officials and ministers were outranked, and, as such, they were relegated to little more than bargain hunters in relation to a particular area of policy, then Scotland’s influence in the EU was open to question. The authors acknowledged, however, that there were times when St Andrew’s house triumphed,25 more usually when Scottish interests adopted a coherent position. But they also observed:

Who governs Scotland? 5 On the other hand, Scottish influence in Europe should not be exaggerated. Except in relation to fisheries, the Scottish Office is a junior department in UK government and its role is more of that of a lobby, to gain concession within the limits of UK policy than to set the policy itself, and there is always the suspicion that in any cross-functional trade-offs in Europe, Scottish interests might be neglected. (Ibid.: 86) That is to say, that a Scottish position on fisheries might count for nought, if UK ministers were intent on securing concessions over agriculture or the single market. Keating and Water’s contribution was but one chapter in Regions in the European Community. This was written when the study of regionalism in the EU was really quite new. It was also written at a point in time when the regions26 were beginning to flex their muscles in the run up to the Single European Act (SEA). The latter mattered a great deal. It marked the moment when the European ‘experiment’ was re-invigorated after a period of stagnation. It was also the point in time not only when substantively more competence was assigned from the Member States to the EU, but also when there would be more voting by Qualified Majority (QMV) in the Council. Where this procedure applied, potentially one Member State could be outvoted by the others. In so doing, it called into question the gatekeeping role of state governments (sometimes referred to herein as central governments). The inception of a Single European Market would also have implications for the EU’s regions, not least because they stood to be affected increasingly by decisions taken by the Council in Brussels (and also by the European Commission). Furthermore, not only were they confronted with the ‘diffusion of decision making’, but from the late 1980s onwards, more and more areas of policy which formerly fell within their ambit, or which were shared with their central government, were assigned to Brussels (see, for example, Jeffery 1997a). In the face of this emerging polity the regions had little option but to mobilise. The emergence of regionalism in the EU helped cultivate the (short-lived) expectation from the late 1980s that a ‘Europe of the Regions’ might supplant the Member States and that, perhaps, the latter would simply ‘wither away’. These dynamics came briefly to a head at the start of the 1990s with the Treaty on European Union (TEU). This treaty (re-)committed the Member States to ‘Ever Closer Union’. But deeper integration, the product of further transfers of power to Brussels would be counter-balanced by subsidiarity – something, which potentially was of relevance to the EU’s ‘third level’ of government, a level which technically included Scotland. But that was not to be. By the mid-1990s, however, it was evident that a Europe of the regions had not come to fruition as some had wondered, instead there existed a Europe with regions.27 Moreover, from a Scottish-UK perspective, the failure to abide by the state/sub-state nexus of subsidiarity was something of a lost opportunity.28 It merely helped to highlight the extent to which Scottish actors were dependent on the government in London to promote and

6 Who governs Scotland? defend their interests in the EU. In so doing, from a Scottish perspective, this further called into question the adequacy of the pragmatic style of government, which had long been the hallmark of the UK polity.29 Within Scotland itself, a country where constitutional change looked increasingly likely, as the millennium drew to a close, relations with the EU remained contentious in the aftermath of the TEU. Scott argued that whenever there was a conflict of interest between Scotland and the UK (by implication the English), the latter’s view would prevail. Such a perspective rested on the twin assumptions that the ‘English’ acted as a bloc and that when this occurred it could be to the detriment of Scotland’s relations with the EU.30 Thomson, however, claimed that the representation of Scottish interests at the European level could hardly be better.31 In so doing, they were indicative of the dividing line between those who called for greater autonomy (and in Scott’s case independence) and those who argued in favour of the status quo. In some respects Scott’s line of argument was a retrenchment of the ‘divergence of interests’ thesis (see below). From Scott’s perspective, as far as the UK government was concerned, if Scottish interests diverged from English interests, then the latter would prevail for democratic reasons. Did administrative devolution enable Scotland to enjoy much influence in the EU? If not, was it simply because the ‘English view prevailed’ or was there more to it than that? Potentially the Scottish Office was well equipped to interface with the EU because it had already accumulated experience of dealing with a ‘remote administration in London’. But, as Smith also observed, its room for manoeuvre in relation to the EU related not to territorial autonomy per se, rather it was comparable to the type of autonomy departments in London enjoyed as they underwent structural change as a result of European integration (Smith 2002). That said, from the perspective of officials, inter-governmental relations between the territorial administrations and the UK government had been for the most part something of a success, as far as EU policy-making was concerned. Consequently, there was an underlying concern amongst the architects of the arrangements which underpinned devolution32 post-1999, that constitutional reform should not damage a system which previously worked well (Bulmer et al. 2002).33 Potentially, however, there was a downside. The UK’s membership of the EU meant that decision-making would be further removed from Edinburgh, both in terms of its physical distance and so too politically. That was of concern to Scottish officials even before the UK joined the EU and this dilemma holds true at the time of writing. Nonetheless, there have been some potentially significant by-products of constitutional reform. Scotland now possesses a ministerial body, which in turn is drawn from the Scottish parliament. Its political leaders have adopted a more strategic approach to foreign affairs than was the case prior to 1999.34 It also has the potential to enhance transparency concerning inter-governmental relations between Scotland, the UK and the EU. Whether all of this results in Scotland actually securing more influence over the EU and its policies is an open question. Sloat, for example, was cautious:

Who governs Scotland? 7 In terms of Scotland’s role in Europe, elites stressed participation over influence. They did not expect the Scottish Executive to sway legislative outcomes; rather, they believed it would enable a nuanced approach by publicising Scotland’s views, implementing directives in an appropriate manner, lobbying Whitehall and speaking with greater democratic authority in Brussels. (Sloat 2002: 224) If the Scottish Executive were to become a ‘participant’, then presumably it would seek to improve its links with Brussels and at the very least secure a modicum of autonomy from the centre regarding EU affairs. Yet, as Keating wondered, had much really changed?35 Other territorial governments have faced much the same dilemma. Yet the EU is not their only concern. Increasingly, they have not shied away from focusing on the wider world. Consequently in recent decades, regions and stateless nations have stepped onto the global stage as significant actors in their own right (see, for example, Aldecoa and Keating 1999, also Mitchell 1997). This is particularly so in relation to economic development (Bachtler 1997) and globalisation (Keating 1997). As Keating observed, the regions’ participation in the international arena has been a mix of experimentation and opportunism where ‘political considerations play the main role in deciding on strategy and initiatives’ (Keating 1999: 11). On the one hand they have competed with each other for inward investment from trans-national capital. On the other, they have formed alliances based on their mutual self-interest. Yet the question remains whether they would have more clout both within the EU and in relation to the wider world if they were ‘independent’ states in their own right. From one standpoint, the answer is no. So it is argued, independence does not amount to much in practice today. From a post-sovereign/post-statist perspective, rather than focusing on the attainment of independence, it would make more sense if territories should instead attempt to maximise their influence in international bodies such as the EU. In so doing, this would enable them to further the process of ‘nation building short of becoming a state’.36 It could thus be argued that stateless nations such as Scotland would be better off by capitalising on all the channels of influence open to them, including those provided by their central governments. Such views are allied to the concept of plurinational diplomacy, whereby a mix of multi-national actors within multi-national states can each involve themselves in international affairs to their mutual benefit. That though rests on the proviso that both the central and territorial governments remain ‘loyal’ to each other in the pursuit of their international agendas. The underlying rationale is that when a central government formulates its foreign policy, it should take into account ‘the international needs and the projection of its regions’, whilst the latter should ‘take into account their state’s position when they conduct their own “paradiplomatic” foreign action’ (Aldecoa 1999: 92). Such a notion clearly has its attractions but is it rather too utopian? Clearly, for those opposed to the idea of the break-up of plurinational states like the UK, this is seductive. But on its own, is mutual loyalty sufficient in the long run or does a territorial government’s ‘influence’ need

8 Who governs Scotland? to be taken into account as well? Thus in any such study as this, the question remains as to whether Scotland actually possesses sufficient ‘power’ under the current constitutional arrangement to exercise, directly and indirectly, substantive influence over decision-making in the EU, or beyond, as aspired to by post-statists? Intrinsically, a successful outcome is more likely if there is goodwill and coordination between the central and territorial tiers of government vis-à-vis international affairs. Indeed, there are good grounds for supposing that it would be in their mutual interests to collaborate closely. Yet would this always be the case? Discounting, for the moment, how far the relevant Scottish elites37 could bring pressure to bear on the centre, the outcome could well be dependent on the extent to which the interests of UK and Scotland converged in relation to a given EU policy. If they were one and the same, then the UK government could continue to act as the key channel of influence. If not, then Scottish actors might be tempted to develop a more extensive relationship with Brussels. Thus it could be supposed that in some respects divergent interests could be one catalyst for Scottish mobilisation in the EU.38 Whilst such a divergence may well occur in relation to a particular policy at a given moment in time, it could equally be the case that this was more deeply embedded (i.e. structural rather than temporal). Whilst Scotland has much in common with other parts of the UK, that is not the whole picture.39 There are good grounds for supposing that Scotland is markedly dissimilar to Yorkshire or Cornwall, for example. Aside from significant distinctions such as Scottish national identity, its culture, law, religion and media,40 70 per cent of the UK fishing fleet is situated in Scotland. Aberdeen is the UK centre for the oil sector. Edinburgh is a global financial player and whisky is a substantial revenue earner for the UK Treasury. Moreover, the country occupies around one third of the UK land mass. Scotland, therefore, in all sorts of ways is quite dissimilar to Cornwall or Yorkshire in terms of its attributes, commercial activities and its interests, whereas, arguably, the latter are less distinct when compared with each other (though their constituent populations might disagree virulently with such a premise). Yet the divergence of interests is not the only variable which has to be taken into account. A key factor is the extent to which the UK government could accommodate those interests when it formulated its position in relation to a given EU policy, or international matters more generally. That could be dependent not only on the ‘capacity’41 of the government to respond adequately to Scottish needs when reaching its position but also on its ‘attitude’. That is to say, not just the attitude of officials in London, but their ministers also, as the latter are likely to have closer involvement in issues of strategic significance or of political sensitivity. It should also be added that the robustness of Scottish ministers also has to be considered when they are fighting their turf.42 Thus bureaucratic processes and ministerial decision-making, which more often than not are a ‘private affair’, would be extremely germane to whether or not Scottish interests were adequately promoted in the EU. An absence of accommodation might therefore encourage Scottish actors to develop closer links with the EU if they perceived that, for one reason or another,

Who governs Scotland? 9 the UK government was unable or unwilling to promote or defend their interests in Brussels. Yet even that is not the whole picture. Actors within a particular territory might well be intent on developing a more direct engagement with the EU because of its impact on their welfare. But their room for manoeuvre could be affected by the existing constitutional arrangements. So, aside from the divergence of interests and the issue of accommodation, we also need to take into account the autonomy of that territory. This could mean that the political elite in a given territory possesses the ‘political authority’ (i.e. ‘power’43), both formally and informally, to exert a measure of influence over their state government vis-à-vis the formulation of EU policy. Equally, a degree of autonomy might ‘enable’ sub-state governments to enjoy substantive influence more directly within the European political arena. To no small degree, that currently holds true both for the German Länder and the Belgian regions and communities (Jeffery 1997b, Kerremans and Beyers 1997). However, unlike Belgium and Germany, Spain does not have a federal system of government. Here the autonomous communities have struggled with varying degrees of success in their attempts to exert control over their Spanish government’s handling of EU matters (Börzel 2002, Bourne 2000, 2002 and 2003). It could therefore be inferred that territorial governments in federal polities have potentially more influence over international affairs than those which do not, and, that consequently, a territory’s constitutional status is potentially the key variable as to whether it enjoys sufficient influence in relation to the EU and its policies. Scotland’s situation is especially interesting because of the pragmatic arrangements that underpinned inter-governmental relations between London and Edinburgh prior to 1999. On the one hand, it could be argued (somewhat akin to Bulpitt) that there is nothing inherently wrong with pragmatism, as such, because much of government is intrinsically informal. Moreover, it could also be suggested that, as practised in the UK, government by tradition does not lend itself to rigidly defined structures of authority delineating power between the centre and its territories. But the question remains as to whether the arrangements, such as they were prior to 1999, actually enabled Scotland to enjoy sufficient influence in Brussels. That may have been so in relation to day-to-day policy-making, but historically did it also hold true concerning matters of strategic significance? If the answer to that is no, not necessarily, is it fair to ask if the same deficiencies could re-occur under the current arrangements? Are they too largely pragmatic? Do Scottish ministers currently lack sufficient political authority in relation to international maters, and is there an absence of constitutional safeguards to redress this? If so, then it could be argued that the country’s international strategic interests remain vulnerable at a moment in time when the issue of who actually governs Scotland is considerably more salient than hitherto. Consequently, relations with the EU and international relations more generally, potentially, could act as drivers for further autonomy – an issue which has long vexed some in Scottish society.

2 An emerging political arena

It is generally recognised that the establishment of a Common Market in Western Europe will have considerable repercussions upon this country whether we do or do not associate in one way or another with it. (The Scotsman, 1957)1

As The Scotsman forewarned, the Common Market would have ‘repercussions’ for Scotland regardless of whether the UK belonged to it or not. Even before the UK’s accession, Scottish civil servants viewed membership of the EU with a combination of alarm and excitement. In the aftermath of the UK’s accession to the EU in 1973, sections of Scottish society were sceptical of the worth of membership and the same could be said of the country’s politicians. Membership also coincided with the first attempt at devolution and here too the issue of European integration proved to be divisive. The 1980s marked something of a watershed. As European integration gathered pace, it became even more politicised in Scotland as the SNP campaigned for ‘independence in Europe’ and Conservative politicians at the former Scottish Office attempted to prove that Scotland’s interests were safe in their hands. But functionally, the existing constitutional arrangement raised doubts that Scotland was too far removed from decision-making in the EU. Potentially, this had ramifications for Scottish politics and the constitutional status of Scotland prior to 1999. Moreover, for some at least, concern over Scotland’s situation persists to the present day. For instance, although Scotland is but one of a number of stateless nations in the EU, that has not deterred leading figures in Scottish society from arguing that it is quite unique. Within a year of Labour’s return to power (in 1997) Cardinal Winning, then Archbishop of Glasgow, warned his colleagues at a conference in Brussels: I mentioned before that the new Scotland would provide a challenge to the rest of the European Union. The reason is this. A devolved Scotland does not fit easily into the two categories recognised by the European Union – sovereign states and regions. A devolved Scotland will have its own parliament, its own legal and educational system, everything up to and including its own football

An emerging political arena 11 team. In short it is a Member State in all but name. That very separate identity marks Scotland out as distinct from the German Länder; the French Departments; the Spanish regions or the Padania so beloved by Signor Bossi! Scotland’s separate religious identity, sporting identity, legal system and educational system mean that it has to be considered in a different way from Catalonia, Bavaria or the Basque Country. Therein lies a problem for the legislators and officials of Europe.2 Winning was but one in a long line of Scots who had recognised the challenges which European integration posed.

An English appendage? When the former Prime Minister, Harold Macmillan, submitted the UK’s first application for EU membership in 1961, the SNP’s leaders appealed to him to re-convene the Scottish parliament. This was on the basis that under the 1707 Treaty of Union, the parliament at Westminster did not possess the authority to cede sovereignty to the EU. Their letter read: Sir, The Writers are citizens of Scotland and office-bearers of the Scottish National Party. In view of the negotiations now in progress for the admission of the United Kingdom to the European Economic Community we wish to draw your attention to the existence of certain Scottish rights, and of limitations on the constitutional powers of the United Kingdom Parliament. To remove sovereignty over wide fields from the United Kingdom Parliament to what is in effect a European Parliament obviously alters the whole basis of the Union of 1707, and consequently this is a step which the parliament of Great Britain has no power to take as far as Scotland is concerned. The correct procedure, if the government wish to alter the system of government set up in the Treaty of Union, must be to call the Scottish and English parliaments separately to negotiate a new basis of association appropriate to the present circumstances, both between themselves and in respect of the European Economic Community. It is obvious that one of the first things a Scottish Parliament would insist on is full Scottish representation on the institutions of the EEC, including a seat on the Council. Since these rights have been accorded to the Grand Duchy of Luxembourg we cannot believe that the nations of the European Economic Community would withhold them from Scotland.3 Unsurprisingly, a civil servant responding on behalf of the Prime Minister rejected the request. This was partially on the basis that Westminster’s competence could not be in doubt, as its existence and that of the Union, was the product of two

12 An emerging political arena separate Acts of the English and Scottish parliaments. He also advised that the UK’s obligations stemming from membership of the EU ‘would be limited to the economic sphere and certain other matters directly connected with the operation of a Common Market’.4 However, an official at the Foreign Office warned the Lord Privy Seal, who was about to visit Scotland, to avoid any mention of the issue if at all possible. His briefing note advised: ‘If, however, he is unable to avoid saying more, the opportunities for endless argument which this subject provide to those so inclined make it desirable for any further comments to be as anodyne as possible.’ A covering note explained that: ‘As you may already appreciate, the whole question of the position of the Treaty of Union in the constitutional law of the United Kingdom is a very difficult one, affording material to those so inclined for endless argument.’5 For a while the issue was laid to rest, in part because President de Gaulle vetoed Macmillan’s application. Even though the above could be portrayed as an early attempt by the SNP to politicise Scotland’s relations with the EU, it was also indicative of Scottish concern about European integration, a concern that was not merely restricted to a single political party. Six years later, when the UK made another attempt to join the EU, the ramifications for Scotland were once again a source of controversy. On the one hand the Europe Panel of CBI Scotland concluded that there were ‘likely to be clear advantages if the UK joined the EU’.6 On the other, the Scottish Trades Unions Congress (STUC) at its annual congress (1969) emphasised that ‘entry into the EU would weaken Britain’s special relations with the Commonwealth and result in increased prices and a loss of political sovereignty’.7 This divergence of opinion between the unions and employers was to persist over the next few decades. They were not alone, however, in attempting to decipher the advantages and disadvantages of membership for Scotland. By 1967 Scottish civil servants were also beginning to consider what the consequences of membership might be for them. When they received a report from an official at the Ministry of Health who had just visited the Hague to learn about the implications of joining the EU, Scottish officials expressed their alarm not just about the potential workload, but also the threat to their autonomy. A memorandum warned: What I should particularly like to draw your attention to, however, is the discussion in the first 17 paragraphs of the paper of the machinery involved in working out and applying Community directives. This seems to involve an alarming amount of administrative work; and the Ministry of Health have already drawn their Minister’s attention to the possible staffing implications. I think that the Scottish Departments will have to consider at some stage what part they are to play in these operations if we come into the Community. It appears that each of the Community countries has to take responsibility for certain ‘working groups’ and the natural tendency will be for various English departments to take over this country’s responsibilities in the fields

An emerging political arena 13 which may be assigned to it. I think we ought to consider whether the Scottish Departments should be given responsibilities in particular fields and not merely exist uncertainly as appendages to their English counterparts. But the author also highlighted the possible advantages: In the new situation which will arise after we enter the Community I suggest that the Scottish Departments ought to look at the possibilities here. Apart from the possible decentralising advantages of having certain blocks of work done from Edinburgh rather than London there might be thought to be political advantages in demonstrating that Scotland was fully involved in the practical working of the Community.8 This was a moot point. Although in this instance this related purely to health (an area of policy that was not a high priority in the EU at the time), the idea that some work should be undertaken in Edinburgh rather than in London was significant. It was indicative of the aspiration that Scotland should not only possess a measure of autonomy in its dealings with the EU, but that there were ‘political advantages’ for it to be seen to do so. The responses to this memo underlined the extent to which Scottish officials were not content to be merely consulted on EU matters, they believed that they should also play a leading role. One commented: I would hope that even if there is a considerable staffing problem we shall be allowed to take a full part in formulating British policy and will be seen to have a part in it. I doubt if it will be sufficient to receive papers and comment on them or even to agree policy with the Ministry’s representatives in London. I support Mr Hogarth’s suggestion that at least the Scottish Home and Health Department ought to look at the possibility of work being done in Edinburgh.9 Another stressed that it was insufficient for them to ‘tag along’ behind their colleagues in London. Scotland should take the lead at times: For my part I entirely agree with your view of the part we ought to play in the work arising out of Community directives. It would be far better to take the lead for the UK in a small group of subjects than to tag behind the Ministry of Health in everything.10 It should come as little surprise that these officials believed that there should be a measure of autonomy for Scotland in its dealings with the EU. This was an era when territorial governments in the UK enjoyed a degree of freedom over the management of their affairs – albeit by the late 1960s that freedom was increasingly at risk as a result of ‘modernisation’ by the centre (Bulpitt 1983). It was also a moment in time when the UK stood on the cusp of a debate on constitutional reform. Over the next decade, it appeared increasingly likely that Scotland would have its own devolved legislature – something that would run in tandem with the UK’s accession to the EU.

14 An emerging political arena During the late 1960s and into the 1970s there was a growing belief that there needed to be alterations to the way that the UK was governed and that led to the formation of a Royal Commission on the Constitution in 1969. Its terms of reference centred on the functions of government in relation to territorial interests and whether constitutional change was ‘desirable’.11 The Royal Commission recognised that its primary mission was to assess whether there was any justification to the claim that authority should be transferred or devolved to the UK’s territories.12 In this instance we are concerned primarily with its deliberations on the EU. Indeed, that was one issue that deeply divided the members of the Royal Commission when they issued their Report in 1973. The Report addressed the issue of whether membership of the EU would affect the ‘climate for devolution’. It was suggested that the UK’s citizens might not only be opposed to another tier of government at the regional level, it was also possible that they might attain a greater sense of ‘unity’ (in response to the EU). However, the Report also considered the implications of EU membership from a functional perspective. It concluded that membership would have little effect on ‘substantial’ devolution though it might affect ‘the freedom that the regions would have to exercise their devolved powers’.13 Yet there was by no means a consensus over the EU. Two of the Royal Commission’s members, Lord Crowther-Hunt and Professor Peacock, published a memorandum of dissent in which they argued that the impact of EU membership would be ‘profound’.14 They warned that if there was devolution, there could be ambiguity as to which tier of government had competence for a particular area of policy.15 They also claimed that under the Treaty of Rome there was no provision for regional ministers to participate in decisionmaking at the European level.16 In the view of the dissenters, it therefore made sense for relations with the EU to be dealt with by the UK government. Under this scenario the administrative departments in Whitehall would remain the focal point of Britain’s relations with the EU17 and the executives of Scotland and Wales, as well as the regional bodies in England, would only have a subsidiary role. The latter would merely be consulted by central government on EU policy.18 The dissidents therefore concluded that as a consequence of the UK’s membership of the EU, there was ‘little scope for legislative devolution’.19 When the proposals for devolution were published in a White Paper during 1975, it was clear that competence for relations with the EU would continue to reside with the UK government.20 It was accepted, however, that some functions could be ‘delegated’ to Scotland, though this related more to the implementation of EU legislation.21 This first attempt at devolution eventually came to nought after the 1979 referendum. Had it actually come to fruition it probably would have been of little consequence to Scotland’s relations with the EU.22 Scottish departments for the most part would have remained mere ‘appendages’ of English ministries – this had already been apparent when the UK stood at the edge of accession to the EU some years earlier.

An emerging political arena 15

EU Accession and UK pragmatism Following President de Gaulle’s political demise in 1969, one of the major stumbling blocks to the UK’s membership of the EU was removed. The following year Edward Heath, the leader of the Conservative Party, and a committed European, became Prime Minister. In the ensuing months there were a series of protracted negotiations between the UK and the EU, but there was little doubt that membership was imminent. By this time it was apparent that Scottish officials were conscious that they would not take the lead for certain areas of policy, in contrast to the aspirations of civil servants in the Scottish Health Department in 1967. Nevertheless, they were determined to secure as much influence as possible over the EU. As an internal memo dated 1971 made clear, Sir Douglas Haddow, the Permanent Under Secretary wanted someone working away on the ‘inside’: Haddow is anxious that we should have at least one man on the Permanent Delegation capable of advising on Scottish Affairs and of keeping an eye on Scotland’s particular interests. It is a wide field for any one man to cover – since our administrative responsibilities include economic and physical development, agriculture and fisheries, education and social work services, health services and all ‘home’ services – but our main interests in the early stages will relate to economic and industrial matters. We have modestly assumed that we are unlikely to get a place at any level higher than First Secretary and have selected a first class principal for this purpose.23 A year later, following an exhortation from the Under Secretary of State, heads of the Scottish departments agreed that a variety of Scottish actors, especially ministers, should cultivate links with the EU and its institutions. An internal memo advised: Suitable occasions should be sought for Scottish Office Ministers to attend meetings of Community and other European bodies; and every encouragement should be given to Scottish local authorities, professional bodies, nationalised industries etc., to establish contacts with their opposite number in European Countries.24 Hence, even before the UK joined the EU, Scottish civil servants and their political masters recognised that the EU was going to have enormous implications for Scotland’s government and that the responsibility fell on them to ensure that informally there should be direct links between Scotland and Brussels. Arguably, this was because it was insufficient for the Scottish Office to rely wholly on the channels provided by London. Concern about inter-governmental relations between London and Edinburgh was by no means a new phenomenon, it was integral to the long-standing debate on the need for Scottish autonomy. However, from 1973 onwards, Scottish actors would have to deal with an emerging polity at the European tier, but at the same

16 An emerging political arena time departments in London would have an intermediary role vis-à-vis Edinburgh and Brussels. That raised a number of issues, not least the adequacy of communication channels between the Scottish Office and the ministries in Whitehall, and whether Scottish officials and their ministers possessed sufficient influence when they lobbied government departments in London on EU matters. The consultation arrangements were little different to those that were outlined in the 1975 White Paper on devolution. It stated: No formal statutory machinery is needed for consultation; it will be better to develop pragmatic arrangements between members and officials of the Scottish administration and the Government. These might operate most effectively through the Secretary of State for Scotland and through the particular Ministers representing the United Kingdom in Brussels or elsewhere.25 Whether these ‘pragmatic arrangements’ were sufficient is questionable. As an official at the Scottish Office explained subsequently in the 1990s, there were no fixed channels of communication, and consultation procedures were very informal at best. He observed: There are no formal linkages between Whitehall and the Scottish Office. When a directive or a proposal from the Commission arrives in London, the ministry concerned may or may not pass it onto the Scottish Office depending on whether it thinks that there is a Scottish dimension. However sometimes they can forget to include Scotland until it is too late for the Scottish Office to comment on it. So the links are quite fluid.26 By 1995 this may have been remedied, after the Cabinet Office issued questionnaires to territorial departments in order to assess whether they had been adequately consulted (Bulmer et al. 2002: 111). That this was necessary was indicative of past problems,27 and it remains to be seen whether it has even been resolved satisfactorily at the time of writing (see chapter six). Even so, there are also grounds for supposing that there were times when the Scottish Office did enjoy substantive influence within the UK polity. Sir Douglas Haddow’s oral evidence to the Royal Commission on the Constitution in 1969 was potentially illuminating in this respect. For example, he agreed that the Scottish Office had been able to influence UK policy over Doonray (a nuclear facility), albeit that he was a little vague on the fine detail: ‘The Scottish Office finger would usually be in the pie. It would be wrong of us to flaunt it and I would like to be excused from explaining how this exercise works, but it does work.’28 When questioned if this was an isolated occurrence he said: ‘I can think of others.’29 When he was then asked if he ‘got away with things’ he replied: ‘Got away with things? I hope I did not put it in quite that way. We get our fair share, and our fair share is sometimes more than the arithmetical share.’30 Yet he also agreed that St Andrew’s House did not always get its way: ‘None of us, I think, is ever able to get all the things he wants when he wants them.’31 In his view there was little

An emerging political arena 17 likelihood of English bias in the functional ministries. But if there was: ‘We should quickly put the matter right.’32 It is unsurprising that Haddow observed that the Scottish Office was well able to influence government policy. First, this evidence was submitted during the late 1960s, when Scotland possessed rather more autonomy than it did during the 1980s and 1990s. Second, as a senior civil servant he could hardly claim in public that his department lacked influence in London. He did concede, however, that the seniority of Scottish officials could be a problem when they attended interdepartmental meetings in London. The aquaculture sector was but one such example of this. From the late 1980s the Scottish Salmon Growers Association (SSGA) lobbied for anti-dumping legislation in the EU because of an influx of subsidised Norwegian salmon. But, allegedly, it faced opposition from UK ministers (e.g. Nicolas Ridley) who argued that the UK should not favour uncompetitive industries. In 1991 the SSGA intensified its lobbying but it faced opposition from the Treasury and the Foreign Office, whilst the Department of Trade and Industry took a neutral line. By then the SSGA had become such a thorn in the government’s side, according to its then director, that responsibility for the sector was ‘shunted off’ to the Scottish Office in 1991. Then the SSGA discovered that the official from the Scottish Office was outranked at the interdepartmental meetings.33 The Scottish Office sent a Higher Executive Officer to London. But the meeting was chaired by an Assistant Secretary from the Ministry of Agriculture Fisheries and Food (MAFF). According to the former director it was ‘an uneven match’.34 This was by no means a new predicament for the St Andrew’s House, as Sir Douglas had observed two decades earlier: The problem is this, I think, that a Department may have a relatively small volume of business in Scotland, but it may be important. The trouble is that the volume of business would not justify the appointment in Scotland of a senior officer. This is the dilemma: either you have an officer who matches up to the volume of business, in which case he is possibly not senior enough to be of real value, or you do not have anyone, because you cannot really employ a high-powered man, who does nothing for half his time. I wish this dilemma did not arise, but it does.35 Cumulatively, these difficulties deterred some Scottish organisations from relying on either the Scottish Office or departments in London, when they wanted to influence events in the EU. A director from a major Scottish energy company summed up the conundrum as follows: The governmental arrangement in the UK is quite complex. Each ministry is really dedicated to protecting its minister. Then there is the division between the Scottish Office, the Department of the Environment and the DTI. We do not have much to do with the Scottish Office and they are not much assistance to us. They very much take second place to the ministries in London. When

18 An emerging political arena the Scottish Office sends an official to one of our meetings with the DTI, for example, the rank of the official tends to be lower than his colleagues in London, so he gets all the knocks. The Scottish Office does not tend to be very well briefed about the energy sector anyway, quite often their consultation papers tend to be out of date and it is quite common for Scotland to be forgotten anyway. Then there is the rivalry between the DTI and the Department of the Environment; they refuse to sit at the same table. So we prefer to go to Brussels where possible.36 Although civil servants have consistently denied that the issue of being out-ranked at meetings in London was of much, if any consequence,37 that Haddow referred to it in his evidence to a Royal Commission implies that potentially it was cause for concern. No doubt for the most part Scottish officials fought their corner successfully, especially in relation to technical/routine areas of policy (see for example Bulmer et al. 2002). Indeed, if the situation arose where they were out-ranked in relation to a given issue, and if they believed that the issue was of sufficient consequence, then they could bring it before their minister. If necessary, it could be raised with Scotland’s Secretary of State, who was a member of the UK Cabinet and thus potentially had the ear of the Prime Minister. But as far UK channels were concerned, ultimately Scottish influence over EU matters was dependent on the attitude of the government of the day and on whether the latter possessed sufficient clout in the Council of the EU. Thus it could be argued that, whilst the Scottish Office acted as lobby for Scottish interests in the UK political arena, it was one step removed from the EU. Although Scottish officials did attend the Council’s working groups, if an issue was being dealt with that mattered to Scotland, they were part of the UK delegation. For their part, Scottish ministers did attend meetings of the Council but here too they were a part of the UK delegation and they did not even have the automatic right to be present. They needed prior permission from their ministerial colleague in the relevant department in London. The Scottish Office might be consulted but the arrangement was relatively informal. If an issue mattered to Scotland, then officials and ministers at the Scottish Office were ultimately reliant on the goodwill of their colleagues in London to pursue it. But there was no absolute assurance that they would do so. Potentially, therefore, the pragmatic arrangements governing Scotland’s relations with the EU left it too far removed from the loci of political authority in Brussels. Arguably, it was Scotland’s political and physical peripherality which contributed to the country’s relative disenchantment with the EU in the aftermath of the UK’s accession. Although the result of the 1975 referendum (on continued membership of the EU) was decisive for the UK as a whole, with 67.2 per cent in favour and 32.8 per cent against, compared to the English and the Welsh, Scots were less certain.38 Of those that voted on the EU north of the Border, only 58.4 per cent were in favour. Two localities were strongly opposed to membership: in the Western Isles, 70.5 per cent were against and in Shetland the figure was 56.3 per cent.39 The political parties echoed this concern.40

An emerging political arena 19 In the run-up to the referendum, the SNP was suspicious of the EU on the basis that it further eroded Scottish autonomy. Winnie Ewing (who was later to become the SNP Member of the European parliament for the Highlands and Islands) called for a ‘no’. Yet others in the SNP also raised the possibility that an ‘independent Scotland’ could re-enter the EU but on different terms to those negotiated by the British government.41 At the same time key figures in the Scottish Labour party were vehemently opposed to membership. For example, Jim Sillars, the MP for Ayrshire, warned: When Mr Wilson visited Glasgow today he would come for the first time without the full-hearted support and consent of the Scottish Labour movement. In seeking a Scottish ‘yes’ he would be speaking against the considered views of the Scottish Labour Party, a majority of its MPs, the Scottish TUC, the Co-operative Party and his own Secretary of State for Scotland.42 How far Mr Sillars was wholly representative of the Scottish wing of the party and its allies is open to conjecture. He subsequently left Labour to start his own splinter party but later joined the SNP (see below). However, at the very least his warning was illustrative of the depth of feeling in some quarters. Both the Liberal and Conservative parties were broadly in favour of the EU during the 1975 referendum campaign.43 In the case of the latter that is unsurprising since a Conservative Government under Edward Heath was responsible for Britain’s accession to the EU two years earlier. Yet, Teddy Taylor, the leader of the Scottish Conservatives, was staunchly anti-European.44 Nevertheless other senior Conservatives were so supportive of membership of the EU they were ready to ‘bribe’ Scottish electors. For instance, on the eve of the referendum, William Whitelaw, the deputy leader of the Conservative party, told an audience in Edinburgh that if the UK stayed in the EU, there was little to prevent Scotland from having its own representation at the European Commission in Brussels. He also hinted that Scotland might stand to benefit from the EU in other ways; for instance one of its institutions could be located in Edinburgh.45 In the event Scotland was not to have its own representation in Brussels until Scotland Europa was established more than fifteen years later (and even then, aside from secondee’s at UKRep and the EU’s institutions, no civil servants were based in Brussels until 1999). Whilst the attitudes of the Liberals and Labour remained much the same during the early 1980s (i.e. the former supportive and the latter hostile to the EU), there was a marked change within the SNP. Until now, one strand of the party’s argument against membership had been somewhat similar to that of Labour: the EU was simply an organisation dedicated to big business. But by the mid-1980s its attitude had undergone a remarkable transformation. By this time Mr Sillars had joined the SNP after briefly forming a breakaway Scottish Labour Party. In contrast towards his earlier stance, Sillars became one of the leading advocates of the SNP’s campaign for Scottish independence in Europe. He admitted that once the Scottish electorate had voted to remain in the EU in the 1975 referendum, ‘a page in history

20 An emerging political arena turned in such a way that nothing of the past can be re-captured’.46 He conceded that whilst Scotland could not be wholly independent if it joined the EU, it would enable Scotland to secede from the Union with England. Even though it would be part of a larger union in Europe, Scottish national identity would be preserved. He then argued that the nation states which belonged to the EU or kept to international agreements had not lost their status as independent countries. Scotland would therefore enjoy considerably more autonomy if it were a sovereign state in its own right in the EU, as opposed to simply being a region of the UK. Furthermore, it enabled Scottish independence to be framed within an international setting.47 Thus, supporters of ‘independence in Europe’ could hardly be portrayed as inward looking separatists; instead they were ‘internationalists’ (Lindsay 1991: 95). That contrasted increasingly with the parochialism adopted by Mrs Thatcher. For the first few years or her premiership, Mrs Thatcher’s attention focused on securing a rebate on the UK’s contributions to the EU budget. That was finally resolved in 1984 at Fontainbleu after four years of negotiations.48 Three years later, the SEA marked the moment when Mrs Thatcher’s free market principles were most in harmony with the EU but that was not to last for long. Within a year or two as the decade drew to a close, she and elements within her party (the so-called ‘Euro-sceptics’) became ever more hostile to what they perceived were the federal tendencies of the EU. This was self-evident when Mrs Thatcher declared her opposition to a European federation at Bruges in 1988, albeit that such a view could have been expressed by almost any British Prime Minister since the 1939–45 war.49 Nevertheless, one of the consequences of Thatcher’s attitude to European integration was that the UK became more isolated in the EU and her European partners increasingly doubted whether the UK had much commitment to the European project. Towards the end of the 1980s, the Labour party was also re-thinking its European strategy under Neil Kinnock’s leadership. The party no longer called for withdrawal from the EU, as it had done in the 1983 general election.50 In part, this was because the EU was apparently becoming more socialist.51 By the 1994 Euro-elections Labour argued that there should be decentralisation of power within the EU.52 It also believed that Scottish Ministers should participate directly in policy-making in the Council and where appropriate take the lead.53 David Martin, the Labour Member of the European parliament (MEP) and (formerly) a Vice President of the European parliament, even took this a stage further; he suggested that the Council should be replaced by a ‘European Senate’ whose representatives would originate from the EU’s nations and regions.54 That would have meant presumably that relations with the EU would no longer have been conducted solely by the government ministries in Whitehall. Scotland, England, Wales and Northern Ireland, it would seem, would therefore all have had their own representation in the EU. The SNP’s position on the EU has also not been without its tensions. The mantra ‘independence in Europe’ has had its attractions, not least because it acted as a vehicle for promoting constitutional reform within the UK. However, the EU had undergone considerable change since the mid-1980s. After the TEU, the EU moved

An emerging political arena 21 a step closer to becoming a federation in its own right. It is partly for that reason the SNP has emphasised consistently that Scotland would be a Member State in a ‘confederal’ Europe. But that did not deter critics from calling into question its stance on the EU during its conference at Perth in 1995.55 However, the SNP has had little option but to be reactive towards the EU since European integration was an ongoing process and there was no certainty as to how the EU would develop (Lynch 1996: 50–51, see also Keating 2001a: 57–59). Following Mrs Thatcher’s ‘resignation’ her successor, John Major, had to balance the Euro-sceptic wing of his party with those who favoured European integration, such as Kenneth Clarke or Douglas Hurd. That was compounded by the fact that in the final term of his premiership he was the Prime Minister of a minority government. Mr Major therefore effectively became the prisoner of his own backbenchers, a good number of whom were hostile to the EU – it took only a few MPs to side with the opposition for the government to be defeated in the House of Commons when it voted on European matters. That Britain was governed by a minority government had a marked impact on the UK’s relations with the EU. Although there was little sign that his administration supported European integration – quite the reverse – at least Major attempted to convey the impression at the beginning of his term of office that Britain’s relationship with the EU would be more constructive than it was under Thatcher. That was not to be, however, and the Conservatives’ opposition to the EU once again left the country with few friends amongst the other Member States. So, the UK may well have been even more marginalised in the EU during Major’s leadership than it was under Thatcher. To some extent it may not have mattered if the Conservatives had begun to disapprove of the EU if the party had been out of government. But for the whole of the 1980s and up until 1997, its ministers represented the UK in the EU. That mattered a great deal to Scotland where the Conservatives enjoyed minority support at elections during the 1980s and early 1990s, thereby calling into question the UK government’s legitimacy north of the Border. Confronted with the SNP’s demand for independence in Europe at successive UK elections, the onus rested with Scottish ministers to demonstrate that Scottish interests in the EU were safe in their hands. In 1991, Ian Lang, the newly appointed Scottish Secretary of State, initially supported the status quo by stressing that Scotland’s interests in the EU were adequately represented by the UK government.56 But within a year he advocated a ‘multi-pronged approach to Europe’.57 This new tack implicitly conceded that informal networking would enable Scotland to improve its influence in the EU. The multi-pronged approach was to be an amalgam of ministerial visits to other territories in the EU, an up-grading of the Scottish Office’s European functions, the launch of Scotland Europa in Brussels, and the cultivation of closer links with Scottish MEPs. Yet by default, it was also indicative of the extent to which Scottish ministers found themselves on the back foot when challenged about the adequacy of Scottish representation in the EU. Where inter-governmental channels failed to support the needs of a Scottish interest, the latter could lobby parliamentarians at Westminster. But the influence of the House of Commons was limited and the same applied to the House of

22 An emerging political arena Lords. In spite of the principle of Scrutiny Reserve58 and the existence of the Select Committee on European Legislation, MPs had very little control over ministers when the latter voted in the Council. What Scottish MPs could do, however, was to pressure ministers by asking parliamentary questions or publicising an issue in the hope that the government would adopt a particular approach towards an EU policy. Otherwise their power was mainly retrospective in the sense that ministers could be held to account for their conduct in the EU. Peers, who sat in the ‘Upper House’, had even less control over ministers, though the House of Lords did conduct substantive inquiries into the EU and its policies, and it was less partisan. There were a number of other channels that were available to Scottish actors, but their worth was also debatable. If it so chose, an interest could approach the European Commission directly or indirectly; in the case of direct contact, it could write to or meet officials in the Commission. However, this related more to intelligence gathering, though that in itself could be valuable because it enhanced an actor’s chance of influencing the outcome later; for example it was of benefit when a local authority sought EU funds. Likewise, lobbying the Commission was to an interest’s advantage at the pre-draft stage when policy was being formulated. However, in the main, the Commission preferred that individual actors dealt with it via European umbrella groups, thereby reducing its workload and deflecting the possibility that it would be seen to be unduly biased towards a single national interest. Euro-umbrella groups were valuable at times because they enabled sectoral and territorial interests to shape the EU’s policy processes. There were two ways that Euro-umbrella groups could access the Commission. They could be consulted in their own right, and certain Euro-umbrella groups could nominate delegates to the Commission’s advisory committees. This ensured that they were given the chance to comment on EU legislation and in some instances they assisted the Commission during the formulation of policy in highly technical fields. Although Euro-umbrella groups also dealt with the Council, this tended to be intelligence gathering before and during its meetings. However, there were occasions where they enabled separate national interests to conduct a joint lobby of their national governments in relation to a particular policy.59 Their main deficiency was that they only worked to the lowest common denominator. Therefore, whilst they were of some use where the membership had a common view in relation to a particular proposal, conversely they were of less worth when there were conflicts of interest between the various national members. If that occurred, an interest could form or join an ad hoc trans-national network. As with umbrella groups, these networks could target the Commission or more likely their state governments. There were a number of representative bodies through which citizens and interests could articulate their views in the EU. Of these, the European parliament (EP) had the most influence because it had a range of powers at its disposal including (after the TEU) the right of co-decision in an increasing range of policy fields. However, unlike state parliaments, it was not a true legislature since only the Council had final authority to create legislation. Even so, where it applied, its

An emerging political arena 23 veto was significant, and the EP could enable interests to induce MEPs to amend a proposal if they had failed to influence it at the formulation stage. Aside from the EP, the Economic and Social Committee represented sectoral interests and the Committee of the Regions (CoR) enabled the EU’s regions to participate formally in the European policy process. The formation of the CoR was potentially of great significance for Scotland because the EU had acknowledged that territorial actors had a right to articulate their views in the EU and they need not be reliant on their central government to do so. However, in practice its power was limited at best (see chapter three). From a Scottish perspective these bodies all suffered from a similar shortcoming: Scottish representatives did not have a sufficient majority within them to affect policy unless they secured allies. They thus had insufficient power to affect EU policy directly unless they could secure wider support. The representation of Scottish interest was therefore potentially inadequate where formal procedures applied. As Kellas observed in 1977, the dilemma for ‘Scottish representative institutions’ was to ensure that the relative influence they enjoyed in the UK was replicated at the European level.60 However, Scotland did not have the same level of representation in the European political system as it did in Britain (e.g. its own minister in the UK Cabinet) and decision-making had become more remote, as a consequence. When the Conservatives were wiped out north of the Border in the UK elections in 1997, there can be little doubt that this was partly because of their antipathy to constitutional change. It is therefore rather ironic that the Conservatives, as the only mainstream UK party committed to the constitutional status quo, should be inadvertently responsible for devolution as a result of their own actions in Scotland. Although Scottish dissatisfaction with the Conservatives related to a host of factors, including Mrs Thatcher’s legacy (e.g. the poll tax, privatisation and industrial closures) and her government’s encroachment into areas which formerly were left to the Scottish Office to administer (e.g. education and health), there are grounds for supposing that European affairs also need to be taken into account. Whichever party was in power at Westminster, it had to justify the way it handled Scottish affairs at the European level. But for the Conservatives, who held office between 1979 and 1997, and who denied Scotland the opportunity to have a more direct involvement in EU decision-making, the pressure was even greater. If they were to remain in office, ministers needed to demonstrate that under the existing constitutional arrangements Scottish interests could not be in safer hands. Judging by the 1997 election result they manifestly failed to do so, both in relation to the EU and also with regard to Scotland’s welfare generally. Yet, it would be wrong to suppose that successive UK governments have been solely responsible for Scotland’s lack of influence in the EU. The EU itself should also be called to account. For the most part it was too remote from its regions and stateless nations (something that the Commission conceded in its recent White Paper on governance).61 The CoR has been something of a disappointment to date. The EP represented the collective interests of the EU’s citizens but offered little by way of influence to the EU’s regions and stateless nations. The Council represented

24 An emerging political arena primarily the interests of the state governments, though there have been reforms which potentially offered territorial governments a vote in this body. Consequently, European integration has posed its own challenges for the EU’s regions, and the difficulties that Scotland experienced prior to 1999 were by no means unique.

3

The chimera of multi-level governance

When the European Union advances, so does regional autonomy. Conversely, when the project of Union falters, a Europe of the Regions also begins to slow down. (Neal Ascherson)1

Whether the EU has been the midwife of ‘regional autonomy’ is a moot point. On the one hand it has offered its regions an additional political arena. Yet, as far as its territorial governments were concerned, each time more competence has been transferred from the state to the European tier of authority, there was the attendant risk that they endured a loss of autonomy as a result.2 Despite the fact that it has been in existence for nearly half a century, the EU is something of an enigma and that too cultivates a degree of ambiguity as to whether it is a force for regional autonomy. Although it has its own currency and embryonic foreign and security policy, it is not a state, in a conventional sense. Yet it is beginning to acquire the vestiges of statehood both in terms of its institutional structure and its powers. But, unlike most states, thanks to successive enlargements, territorially, it rarely remains the same size for long. Moreover, each new treaty marks the moment when more power is ceded to the EU. It is tempting to view this as a zero sum game whereby each transfer of competence to the European tier amounts to a loss of power at the state level. But as the Member States exercise power collectively, and where the veto applies, individually, in the Council it could be suggested that the EU has not really eroded the power of its Member States at all. Instead, it could be argued that if anything European integration has strengthened their influence in the global arena (Milward 1992). As the Member States are the authors of the treaties, it could be categorised as an inter-governmental organisation – only the former possesses the competence to decide whether there should be more integration. But, as the EU possesses supranational authority, where the treaties so allow, then it cannot be regarded purely as an inter-governmental body like the Council of Europe or the Nordic Council. In essence, where its supranational authority is applicable, its laws take precedence over state law and consequently EU regulations have direct effects at the state (and sub-state) level. Increasingly, therefore, it has become a powerful

26 The chimera of multi-level governance polity in its own right, and in so doing, it has encroached into areas of policy which fell within the competence of territorial administrations. However, there is no certainty as to what the future holds for the EU. On the one hand, it is the product of ‘ever closer union’, which implies at some point it will become wholly integrated. But the final outcome remains unclear in part because there is no consensus on this (i.e. among its constituent members, nor for that matter, the EU’s citizens). There is also the issue of whether it will be able to function effectively with 25 or more Member States. Will they be able to agree on policy, or will the Council find itself embroiled in successive rounds of negotiations and trade-offs, with the result that it becomes gridlocked on any potentially divisive issue? It therefore comes as little surprise that Jacques Delors, a former president of the European Commission, described the EU as a ‘unique venture’3 – in effect there is nothing else quite like it – and there is no cast-iron assurance that it will even survive. During the EU’s initial years its procedures were relatively simple to comprehend. The European Commission formulated policy and submitted proposals to the Council, the constituent members of which were the ministers from the Member States. Where the treaties so allowed, the proposals were also submitted to the EP. But as far as policy-making was concerned, up until 1987, the EP possessed consultative status. It could issue an opinion but there was no assurance that this would influence the Council – the body which had the authority to decide whether or not to adopt the Commission’s proposal. Following the SEA in 1987 and again under the TEU in 1992, the EP acquired more power with the result that increasingly it shared decision-making with the Council – especially in those policy fields where voting in the Council was by Qualified Majority. Even so, for the most part, the Council retained its primacy. But the premise that it is ministers themselves who decide on policy and that this sometimes is undertaken in conjunction with the EP is not the whole picture. In some respects, it is not ministers who necessarily determine policy (though they can be pivotal in relation to highly contentious matters). For routine policy issues, their officials undertake inter-governmental negotiations as members of the Council’s ‘working groups’. Allied to which, the negotiations in the Council can be the result of quid pro-quo’s. This can occur where one Member State offers to add its votes to those of another in order that the latter attains the result that it seeks, but in so doing, the former will expect support in relation to a completely different matter. In addition, the Commission is a powerful actor in its own right. Firstly, because as the initiator of policy it is well placed to set the agenda. Secondly, in some areas of policy, especially those that are the ‘common policies’ such as fisheries or agriculture, it enjoys delegated decision-making powers (over which the EP can have limited influence at best). For their part, the governments (and territorial administrations) of the Member States are responsible for implementing EU policy. The net result is that there appears to be no single locus of political authority in the EU.4 It is shared between the EU’s institutions and between the Member States, but even here there is fluidity. The power of each of the various actors is dependent on which stage the policy process has reached and on which policy is involved.

The chimera of multi-level governance 27 The existence of multiple centres of power had its advantages, potentially, because it implied that territorial actors enjoyed a variety of access points to the policy process. But equally the EU’s regions and stateless nations have been something of ‘also rans’ in the race to an integrated Europe because essentially the EU is the creature of its Member States. For the most part in relative terms, the regions possess less political authority in relation to the EU and its policies, than do the Member States (this is less clear-cut for federal polities – see chapter seven). Nonetheless, it should also be said that the regions were not entirely relegated to being mere bystanders as the European project evolved – they increasingly took a close interest in the EU and its policies. When the EU was first established in 1957, the status of its sub-state government was rather ephemeral. For many years the governments of the Member States regarded the EU as ‘foreign policy’ and as such the regions were excluded from decision-making at the European tier. Allied to which, to begin with, the regions were in relative terms, constitutionally ‘weak’ as regards the EU – even those with federal systems of government. Yet, right from the start, the EU mattered to its regions. European integration, albeit in the context of a Customs Union or Common Market, inevitably had an impact at the sub-state level. For instance, some rural regions stood to benefit once the tenets of the Common Agricultural Policy had been settled at the end of the 1960s, whereas industrial regions were vulnerable when local markets were subject to competition as barriers to trade were dismantled. In the final stages of the UK’s negotiations for membership two issues of concern for Scotland were agriculture and regional funding.5 In practice the two were interconnected. It was apparent that there would be some kind of structural funding but it was feared that this would be allocated to rural development and the new Common Agricultural Policy. However, Scotland suffered from industrial decline, with the result that aid was required in urban/industrial rather than just rural areas. Scottish officials therefore expended considerable effort in ensuring that the UK government adopted a hard line when negotiating with the other Member States’ governments in the run-up to the country’s membership in 1973. But all was not plain sailing. There was considerable disquiet amongst those in the Scottish fishing industry that the EU’s 1970 regulation on fisheries was a done deal which was potentially very damaging to their sector. As European integration gathered pace, the regions were confronted with the dilemma of how best they could influence the EU. Prior to the establishment of the European Coal and Steel Community in 1951 (the forerunner of the EU) they only had to interface with their state government. How that worked in practice depended on their internal arrangements. In a federal system, such as existed in Germany, the separation of powers between the state and regional level was determined by a constitutional mechanism. In a unitary polity, such as existed in the UK, regional autonomy was dependent to no little extent on the attitude of the government of the day. Now the EU’s regions also had to deal with an emerging and increasingly influential polity at the supranational level, which impacted directly on their interests. As long as the use of the (state) veto remained the norm, a region could look to its state government as the final protector of its interests in

28 The chimera of multi-level governance the EU. But with the increased use of QMV, one Member State could be outvoted by the others and a policy could then be ‘imposed’ on its territory whether it liked it or not. They now had to take the governments of the other Member States into account. In sum the regions increasingly had to become more pro-active. Consequently, over time, they established their own umbrella bodies to lobby both the other Member States and the EU’s institutions. They opened offices in Brussels, they were also formally incorporated into the EU’s policy processes following the inception of the CoR, and some regions secured direct access to the Council. The establishment of inter-regional associations has long been one of the building blocks of European integration, albeit that it exemplified ‘horizontal’ rather than ‘vertical’ integration (Weyand 1997). The first such groups can be traced to the 1960s and 1970s and were usually related to those regions with common borders (Ibid.: 166). A further category of inter-regional association ‘shared common political or economic objectives’ (ibid.: 167). Some of these organisations had a ‘legal base’, whereas others originated from no more than a ‘declaration of intent’ by the participants (ibid.: 167). However, although there were a host of distinctive umbrella groups in the EU, which enabled regional government to exchange ideas, develop trans-national collaboration and undertake collective lobbying, to begin with one organisation was particularly relevant to Scotland. The Conference of the Peripheral Maritime Regions (CPMR) was formed in 1973 when Brittany invited 30 ‘peripheral areas’ to discuss their ‘common problems’.6 The CPMR’s formation coincided with the UK’s accession to the EU and Scotland was one of its founding members.7 In 1977 the CPMR held its annual conference in Inverness by which time Scottish actors were playing a leading role in the organisation’s affairs. An official from the former Dumfries and Galloway Regional Council who was once depute secretary general to the CPMR explained why his council had joined: Dumfries and Galloway Regional Council thought that the CPMR would be a worthwhile pressure group and decided to join. They do not try to seek grants but they do try to influence policy. CPMR members are in Brussels almost every day, so they could put the CPMR view if they were organised, rather than be parochial. There is more chance of success through a transnational alliance. What is important is knowing someone in the Commission and forming trans-national alliances. The trick is how to combine the two. A Spaniard might ask a Scot how best to approach Millan [a Commissioner at the time and who was a Scot] or his cabinet, so the key thing is to play as a team and know where influence is to be applied.8 Hence, it was advantageous to belong to the CPMR in part because it enabled individual members to capitalise on each other’s contacts in the EU. The CPMR was also consulted by the Commission on the structural funds.9 In addition, a number of those who once had personal connections with the CPMR were subsequently employed in the Commissioner’s cabinets, where they were well situated to ‘influence events and have a word in the right place’.10

The chimera of multi-level governance 29 Following the formation of the CPMR, there was the concern that the nonperipheral regions in the Community lacked their own umbrella group – that contributed to the formation of the Association of European Regions of Industrial Technology (RETI). It also led to the establishment of the Association of European Regions (AER) in 1985 (formerly entitled the Council of European Regions) which initially operated under the guidance of the CPMR. The AER’s membership extended well beyond the EU’s borders, however: by 1993 it embraced 230 regions across Europe.11 It therefore had a much wider remit than the CPMR or RETI, as it promoted inter-regional co-operation across the whole of Europe rather than simply within the EU. It may have been partly for that reason that when Bavaria organised its first conference of a Europe of the Regions in 1989, only those with strong constitutional powers were invited (e.g. territorial governments in Spain, Italy and Belgium). For its part, the AER’s approach to the EU was viewed by some as little more than a ‘crusade of the weak’ (Weyand 1997: 177). For a while, during 1990, this divergence became more overt but eventually the AER retained its remit for articulating the regions’ view in the run up to the TEU. By now the Consultative Council of Regional and Local Authorities had been created by the European Commission after pressure from AER members and this became the forerunner of the Committee of the Regions (CoR).12 At the moment of its conception the CoR was viewed as something of a milestone because sub-state government would from henceforth be formally incorporated into the EU’s policy processes. But not only did it lack decisionmaking powers, its constituent members were very diverse. Delegates to the CoR could range from a President of a German Land to a local councillor from Plymouth. Yet there was a reason for that. Before it was established, there was the dilemma about whether municipal bodies (i.e. local councils) should be excluded. But that was not to be because countries such as the UK, Ireland, Greece, Denmark and Portugal would otherwise have been prevented from sending delegates. Thus the inclusion of the municipal authorities was a necessary compromise (Loughlin 1997: 157). To date, however, it still remains to be seen whether the CoR becomes an influential player in the EU. During the 1980s and on into the 1990s, the regions established their own offices in Brussels. Birmingham City Council set up the first in 1984. There were 15 offices four years later, rising to 54 in 1993 and 140 by the end of 1995 (Jeffery 1997d: 183). Essentially they had two primary functions. They conveyed information from the EU to their regional administration and thus could act as an ‘early warning system’. They could also be rather more pro-active. For example, they could supply information to the Commission during the early stages of policy formation. The UK and German offices were an amalgam of both functions but not identically so. The UK offices tended to be more reactive, whereas the Länder offices more overtly set out to ‘shape policy’ (ibid.: 193). Although Jeffery’s study pre-dated constitutional change in the UK, one of the explanations for the difference was that potentially the Länder were better resourced than their UK counterparts and they were intent on securing access to EU policy-making in areas which fell within their competence. For their part, the UK offices had somewhat lower ambitions (ibid.: 200).

30 The chimera of multi-level governance The establishment of regional offices at the EU’s epicentre was indicative of the extent to which sub-state governments were mobilising. They were no longer content to rely solely on the channels of influence and communication provided by their state governments, or for that matter umbrella groups like the CPMR. More significantly in the run-up to the TEU, some of the more powerful regions (e.g. the Länder) attempted to ensure that decision-making in the EU should, where appropriate, be taken at the lowest levels of authority. In effect it was hoped that political union would not result in the centralisation of power. Consequently, from the early 1990s, the principle of subsidiarity became increasingly the focus of attention. In the immediate aftermath of the TEU there were three possible interpretations. First, that where appropriate some functions should be transferred upwards to the European level; secondly that it delineated competence between the Member States and the EU but in so doing it protected the sovereignty of the former; and thirdly, that where appropriate authority should be devolved to the sub-state tier. This last interpretation posed its own problem for the UK government at the time because the Conservatives, under the leadership of John Major, were opposed to devolving power to the country’s constituent territories. Major’s government therefore worked behind the scenes to ensure that the second interpretation prevailed and its goal was realised at the Edinburgh Summit in 1992. Despite the reiteration of Article A of the TEU (which stated that ‘decisions are taken as closely as possible to the citizen’), the conclusions of the (EU) Presidency confirmed that subsidiarity ‘safeguarded’ the powers of the Member States, albeit with a reference to citizens.13 In November 1993, when the Commission made its report to the Council on the adaptation of Community legislation to subsidiarity, it maintained that ‘its function was not to distribute powers’ – that rested with the Member States themselves.14 From this perspective subsidiarity effectively related to the separation of authority between the EU and its Member States. By default it was up to the Member States themselves to decide individually as to whether the principle also applied to the sub-state level. However, subsidiarity was subsequently referred to in the Treaty of Amsterdam in 1997, at the instigation of the German Länder. A protocol relating to the principle was included in an appendix, which stated that it could also apply to the sub-state tiers of government (Börzel 2002: 75). Even so, ensuring that the principle was actually applied correctly soon exercised the Scottish Executive during Holyrood’s first four-year term (see chapter eight). Aside from the CoR, and subsidiarity, the TEU offered its regions another source of empowerment but this too was of questionable value. Under (the then) Article 146 of the treaty, where their state’s constitution so permitted, sub-state ministers could act as the representative of their state in the Council (or in practice the representative of the sub-state governments in their entirety within that country). This was potentially of worth for regions which possessed federal constitutions such as in Germany and Belgium, but it was of less relevance to territories in unitary polities like the UK. Scottish ministers did attend the Council from timeto-time but they did not possess the automatic right to be present and if one of them

The chimera of multi-level governance 31 ever headed the UK delegation then at that point in time de facto he or she was a UK minister. For the most part, the regions continued to be represented indirectly by their state government in the Council, which further called into question whether their influence in the EU was sufficient. At the time of writing, arguably the TEU represents the high point of the ‘regionalisation’ of the EU – a subject which has become increasingly the focus of academic debate.

Multi-level governance, Europeanisation of domestic policy and para-diplomacy Formulating a conceptual model of territorial participation in the EU has been far from simple, not least because there is no consensus on a single archetype. That certainly holds true for ‘multi-level governance’ – the construct which attained particular prominence from the early 1990s onwards. Governance, it would appear, relates not just to the processes of how we are governed, it also implies that our government has undergone something of a transformation.15 ‘Multi-level governance’ recognised that power within the EU was extremely diffuse. Simply put, it implied that it was no longer sustainable to conceptualise the EU/European integration in terms of supranationalism versus inter-governmentalism. Territorial mobilisation needed to be taken into account as well.16 As such, initially it was intellectually seductive for students of regionalism,17 but was it too ephemeral to be of any worth? Multi-level governance (MLG) was based on the notion that sub-state actors were involved increasingly in the European arena as ‘players’ in their own right. More particularly this was, some claimed, a less hierarchical political arena.18 Hitherto, conceptual models of European integration had pivoted between functionalists and neo-functionalists on one side, and, inter-governmentalists on the other. The former tended to view European integration from a supranational perspective, the latter from a state-centric perspective. But Marks, one of the MLG’s protagonists, believed that both approaches had failed to take into account the changing status of sub-state actors in the EU. He claimed: I suggest we are seeing the emergence of multi-level governance, a system of continuous negotiation among nested governments at several territorial tiers – supranational, national, regional and local – as the result of a broad process of institutional creation and decisional reallocation that has pulled some previously centralized functions of the state up to the supranational level and some down to the local/regional level. (Marks 1993: 392) This was held to be especially apt in relation to the EU’s structural Funds, where the principle of ‘partnership’ applied not just to the state–EU axis but also extended downwards to the sub-state level.19 Marks acknowledged, however, that the extent to which this scenario applied across the EU varied, not least because some states were highly centralised. However, he perceived not only that as far as the structural

32 The chimera of multi-level governance policy was concerned, decision-making competencies were amorphous, but also that potentially there could be conflict over who exactly should be responsible.20 In part MLG was a consequence of the EU’s ‘regionalisation’ under the TEU (i.e. the formation of the CoR, subsidiarity and sub-state ministers voting in the Council) along with the reform to the EU’s structural funds in 1988. According to ‘multi-level governmentalists’ regional actors were drawn upwards into the EU’s political arena – with the encouragement of the European Commission – and on occasion they participated in that arena out of their own volition (Hooghe 1995a). MLG was an attractive concept and it coincided with an era when regionalism in the EU appeared set to take off. It contributed to the thesis that potentially, the regions could be semi-autonomous actors in their own right in the EU. It also implied that they had acquired some decision-making powers in relation to EU policy – or more precisely, for the most part, the EU’s structural Funds. But was the concept at risk of being too vague, and if so, did the fault lie partially with the usage of the term governance? Governance is something of a multi-dimensional term.21 For example, Rhodes acknowledged that it appeared to have too many meanings to be of any use. He cited six meanings: ‘the minimal state, corporate governance, the new public management, good governance, a socio-cybernetic system, and, self-organizing networks’ (Rhodes 1997: 47). He then ‘rescued’ it by applying just one meaning – namely that it related to ‘self-organizing, interorganizational networks’ – something that was indicative of the changes as to how we are governed. Integral to this was the inclusion of non-state actors, the interdependence of the participants, the levels of interaction and negotiation between them and their relative autonomy from the state (Ibid.: 53). Rhodes singled the ‘Hollowing out of the State’ as but one example where MLG could be of value. ‘Hollowing out’ implied that the EU’s Member States were no longer necessarily the powerful actors they were once. This was a by-product of European integration, along with the transfer of competencies to sub-state government and the lateral erosion of power as a result of globalisation. In effect, as was the case elsewhere in the world, state governments still had a role to play, but their capacity to control events was diminished. A tangential interpretation of governance was that in the contemporary world, state governments could do little more than ‘steer’ society and the economy by providing ‘political brokerage’ (Pierre 2001: 3). Rhodes, however, took a slightly different view. He implied that state governments could no longer necessarily even provide ‘steerage’. Instead all we were left with was the idea that we were ‘governed’ by ‘interorganisational networks with no single actor in sole authority’.22 In effect the notion that governments actually governed in the way that supposedly they once did had become an anachronism. Both governance and MLG offer interesting perspectives as to how government works but do they actually provide fresh insights? First, the premise that there are multiple layers of government is by no means new. Scotland’s version of administrative devolution formed the centrepiece of Kellas’ Scottish Political System. This book’s first edition pre-dated the TEU by many years but its tenets bear a remarkable resemblance to those of MLG. It too was based on the notion that there

The chimera of multi-level governance 33 were interdependent networks (in this instance they focused primarily on the former Scottish Office). Here too non-state actors (i.e. Scottish civil society) were involved in a process of negotiation. Although the EU had yet to integrate more fully when this book was first published, within a couple of years Kellas acknowledged its significance, not least because of the likelihood that the Scottish Office might deal directly with the EU’s institutions. Thus in terms of offering a description of a multi-level polity and the processes involved, MLG is not necessarily so new after all.23 Equally, MLG risked appearing ephemeral by virtue of its asymmetry. For instance, Hooghe observed that sub-state governments had the option of participating directly in the European arena but she also conceded that the extent to which they secured access to the EU was dependent on their resources. It was then rightly argued that ‘subnational authorities in decentralised or federal states’ were best placed to achieve this, in part because of ‘their strong legal-constitutional position’ (Hooghe 1996: 18). Consequently it risked being of less relevance to Scotland, for example. Protagonists of MLG also had a tendency to rely on the EU’s structural funds as a means of promoting its validity (e.g. Marks 1993, Hooghe 1996). When the Funds underwent reform in 1988, one consequence was that it was intended that sub-state governments, together with other territorial actors, would be participants rather than spectators in the funding process. In part this stemmed from ‘partnership’, which was but one of four such principles that were to govern the application of EU aid (the others being additionality, concentration and programming). The significance of partnership lay in the premise that at times the regions’ status would be somewhat akin to the two ‘higher’ tiers of government and that territorial administrations would have a more direct relationship with the EU’s institutions (primarily the Commission). The issue that then arose was how far the state government could act as a gatekeeper between sub-state actors and the EU in relation to the funding process. If it could, and if it actually did, then that could call into question the veracity of multi-level governance. According to Hooghe, the ‘state was at best an imperfect gatekeeper’, albeit that this was somewhat qualified with the caveat that how partnership actually applied in practice varied across the EU.24 There are grounds, however, for supposing that state government remains extremely relevant to sub-state actors in relation to EU aid. For example Bache, who had undertaken a study into the Funds’ implementation, observed: While multi-level governance has considerable merit in describing the emerging polity of the EC, the evidence from regional policy is that national governments operate as gatekeepers at various stages of the policy process to put a brake on the emergence of a truly multi-level system of governance. He then suggested that there was a form of ‘multi-level participation’, but central to this was the ‘flexible gate-keeping’ undertaken by state governments (Bache 1998: 155–156). By implication they could be pivotal to the outcome, which in

34 The chimera of multi-level governance turn calls into question the notion that sub-state government could be an equal partner with the state tier in relation to the structural funds. Indeed, somewhat in contrast to Rhodes’ perspective (see above), there is the view that a strong ‘centre’ is an essential element of governance. The underlying reason being that if governance comprised a series of semi-autonomous networks, the result would be policy incoherence without some central authority which possessed the capacity to ‘steer’ those networks in a given direction. In addition this was also necessary, so it was argued, in order that the activities of these networks were ‘representative’ of the expectations of society. That related not just to legitimising their work but also democratising them.25 Whilst this may be true, the notion that strong government was integral to governance risked clouding further what the latter really amounted to when it was distilled into its purest form. All in all, perhaps MLG was attempting the impossible. As Jeffery observed, MLG was ‘a phenomenon which was structurally restricted to decentralised states’ (Jeffery 1997d: 201). For his part, Keating was rather more critical of the term, believing that it offered ‘little by way of guidance’.26 Although it could also be claimed that the EU’s regions and stateless nations are simply too dissimilar to be categorised under a single model, all may not be lost. Unsurprisingly, when the regions have mobilised, this related primarily to those areas of policy that fell under their competence. Thus perhaps we should not examine the European activities of sub-state actors in terms of MLG but in terms of their ‘Europeanisation’. Even though there is no precise consensus on its meaning (Olson 2002), Europeanisation is of potential worth to the study of regionalism in the EU. For instance, John suggested that: Europeanization can be defined as a collection of processes which progress from greater awareness of European legislation, growing willingness to search for European finance, networking with other European local authorities and experts, direct lobbying of Brussels institutions, and the influence of EU ideas on sub-national policy making. (John 1997: 133) This is a useful exposition of the term because it relates not just to the sub-state governments’ awareness of the EU but also how they responded to it. Europeanisation can also be conceived in terms of it being both- a top-down and bottom-up process. As far as the former was concerned, this related in part to the creation of EU institutions and law, whereas as regards the latter, the emphasis was on the effects of this at the state level – which is of salience to the ‘Europeanisation of Domestic Policy’ (EDP).27 Over time territorial governments have seen their autonomy eroded as a result of European integration. As a consequence their state government acting in concert with its counterparts in the Council secured competence over areas of policy which were formerly the preserve of the territorial government, or which the latter shared with the centre. Yet, the dividing line between domestic and foreign affairs had become ‘blurred’ and consequently the state government could no longer legitimately monopolise relations with the EU,

The chimera of multi-level governance 35 as would be so under the classic foreign policy model. Accordingly, sub-state authorities, especially those which enjoyed legislative powers in a federal system, sought to regain a degree of autonomy in relation to those areas of domestic policy, which now fell under the EU’s competence (see Gerstenlauer 1985 and 1995, Jeffery 1997b, Börzel 2002). However, other sub-state bodies, for example those in the UK, could be constrained by existing constitutional arrangements.28 Yet, we are left with the possibility that that Europeanisation and EDP may be rather too ‘narrow’ in their focus. This is because these models related primarily to the EU and its impact at the sub-state level and in so doing they did not address the ‘internationalisation’29 of territorial politics. Here, the concepts of ‘para- and proto-diplomacy’ were potentially of value. Essentially para-diplomacy advanced the premise that sub-state governments have entered the global arena as participants, alongside unions and international organisations, for example. According to Duchacek (cited in Aguirre 1999) paradiplomacy consisted of: Political contacts with distant nations that bring noncentral governments into contact not only with trade, industrial or cultural centers on other continents . . . but also with the various branches or agencies of foreign national governments. Whereas, proto-diplomacy related to: Those initiatives and activities of a noncentral government abroad that graft a more or less separatist message onto its economic, social and cultural links with foreign nations. In such a context, the regional/provincial parent authority uses its trade/cultural missions abroad as protoembassies or protoconsulates of a potentially sovereign state. Such missions may be sometimes viewed and treated by the recipient foreign government in a similar fashion.30 The notion that sub-state governments had developed distinctive international policies differed from Europeanisation inasmuch as this simply did not relate to the sub-state–state–EU axis; it also applied to international matters more generally. Para-diplomacy faced a number of hurdles, however. Aldecoa believed that paraand proto-diplomacy were too closely related to ‘the old realism’ which took as its ‘point of reference the foreign policy of states’, but in so doing, they failed to address the ‘transformation of diplomacy in the contemporary world’ (Aldecoa 1999: 83). Instead, he chose to use the term ‘plurinational diplomacy’, whereby the formulation of foreign policy within a state merited ‘reciprocal loyalty’ between the state and sub-state governments. Integral to this was the notion that diplomacy itself had been transformed. The state had lost its monopoly over foreign affairs and sovereignty was shared. The net result was that there were ‘multiple loyalties to the state and the [European] Union’ (Ibid.: 92). Aguirre, on the other hand, suggested that the participation of ‘non central governments’ in the international arena was not really tantamount to diplomacy. Their activities in the

36 The chimera of multi-level governance international arena were not necessarily ‘parallel’ to those of the central government or even ‘abnormal’. Rather they could be best described as ‘post-diplomatic’ because they occurred ‘beyond the state’ and by default ‘beyond diplomacy’ itself. That is not to say that the regions were not involved in international affairs. According to Aguirre, the fact that they were was indicative of ‘the unavoidable challenge of the contemporary process of localization of international relations’ (Aguirre 1999: 205–206). In sum, whilst each of these models had their merits, they had their limitations too. One explanation is that the EU is still evolving and therefore conceptual models require revision or replacement as a result of new empirical data.31 MLG faced particular problems in part because by adding various caveats as to how it could be applied, not only did it lose its simplicity and so became less easy to comprehend, it also called into question what it actually amounted to in practice. In so doing, it risks telling us little that is not known already concerning regional mobilisation.32 Nevertheless, to begin with, at least, it did make a valuable contribution by highlighting the salience of the regions to European integration, a subject which hitherto with the exception of Keating and Jones (1985) and Jones and Keating (1995) had largely been dominated by inter-governmentalism and supra-nationalism. But it was on less sure ground concerning regional autonomy. Arguably one of the lynchpins of MLG was the hypothesis that potentially the gate-keeping role of the state government had been eroded. But empirically this may not necessarily be the case, even in relatively decentralised states. Thus for the moment at least MLG remains something of a chimera. More particularly, the regions themselves are so diverse in terms of their aims and powers that there are grounds for wondering if their mobilisation can be encapsulated meaningfully within a single conceptual framework. The net result could be that a model which applied to Scotland, for example, might be less well suited to federal polities such as Germany or Belgium.

4

Scotland and the EU’s structural Funds

The modernisation of the older industries, on which we became so dependent as a result of our early industrial success needs to be pushed ahead with renewed vigour. Our regional policies are designed to help us in this and they will continue after our entry into Europe. We shall also qualify from existing Community Funds and Institutions. (Gordon Campbell, Secretary of State for Scotland, 2 Jan 1973)1

As Gordon Campbell intimated in 1973, Scotland would ‘also’ qualify for EU Funds after the UK joined the EU. Indeed, by the early 1990s 85 per cent of Scotland’s population resided in localities which were eligible for EU funding. At the time this was portrayed as something of a coup by the former Scottish Office, albeit that securing European aid was by no means a novel experience. Between 1975, when the European Regional Development Fund (ERDF) was established, and 1988, Scotland was assigned £2,594 million from ERDF grants under the quota scheme, much of which was devoted to improvements to the infrastructure. Between 1989 and 1993 the country was allocated £897 million, and a further £1,992 million under the 1994–99 tranche.2 Whilst the amount of monies involved should not be belittled, the fact that Scotland was even entitled to this was indicative of the country’s relative economic under-development. Scotland had long endured economic disadvantage compared to other parts of the UK. For instance, during the period 1960–6 its average unemployment was almost double that of the UK, and by 1965, its ‘loss of population through migration’ amounted to 45,000 in that year alone, a figure which exceeded ‘natural population increase’ (McCrone 1969: 20). Prior to the UK’s accession in 1973, therefore, Scottish civil servants were concerned that this disparity would be exacerbated by EU membership, unless Scotland secured ‘additional’ regional assistance over and above that which it already received from the UK. Whilst officials focused primarily on ensuring that Scotland would receive its fair share of EU aid, UK ministers had an entirely different agenda. This was because the UK would be a net contributor to the EU’s budget as a result of the Common Agricultural Policy (CAP). In public, ministers, including Mr Rippon, Chancellor of the Duchy of Lancaster (who was responsible for negotiating the UK’s terms

38 Scotland and the EU’s structural Funds of entry), were quite content to imply that EU funding would be of value to Britain’s regions.3 In private, as informed commentators had long been aware, the government decided that EU monies should replace UK regional aid, as opposed to their being genuinely additional to UK regional funding.4 Consequently, despite the sums involved, which itself attracted public interest, EU aid would be of limited worth to Scotland well into the 1990s. In so doing the issue of EU funding became a bone of contention both during the run up to 1973 and in the decades which followed.

Where will EU aid go? In the years immediately prior to the UK’s accession, one of the main concerns was that any future aid programme would be predetermined by the existing Member States (i.e. ‘the Six’) and that the net result would be to the detriment of the UK. A British official warned: The immediate point is the tactical one. When these proposals become generally known in the UK, as they will during the next few months, they will offer ammunition for critics of Government policy. FEOGA is an agricultural fund and it is perfectly legitimate to use it to assist with regional development in primarily agricultural areas. This is a major objective of the modified Mansholt plan. It could hardly be expected that this fund could be devoted to industrial or urban areas. But from Britain’s point of view there is a danger that under this proposal the agricultural areas will come to be regionalised de facto as the problem areas of highest priority. They will then get both the largest share in whatever assistance is going and a high proportion of the mobile industry in Europe. The UK might accordingly find that the priorities of regional policy had been settled in advance of our own membership and that this, therefore, became difficult to alter. It is in our interests therefore (while recognising that the development of problem agricultural regions is a legitimate use of FEOGA funds) to emphasise that this must form but one aspect of regional policy in the EEC, that the Commission have themselves made clear that assistance must also be given to other types of problem areas; and that in due course, therefore, a parallel scheme of equal priority and importance must be prepared to help industrial and urban areas from other parts of the Community budget.5 George Younger, then a Scottish Office minister, was well aware of the political sensitivities involved. He warned his civil servants: I find this a little difficult to understand, but I wonder whether this is an indication that the EEC are going to be formulating regional policy at the very moment we are trying to convince our public to join? If so this is very dangerous from the point of view of public opinion in Scotland. Between now and October any views on this other than a clear indication that Scotland will

Scotland and the EU’s structural Funds 39 retain all its preferences will terrify Scots opinion and in my opinion would result in a significant number of Government MPs refusing to support entry. Can I please be assured that no decisions are being taken by the EEC and that no such news or rumour will come out before October? G.Y.6 Others took a ‘political and psychological’ line: A member of the UK delegation in Brussels observed: There must surely be political and psychological advantage to be gained in Britain, especially in the more remote development areas, in arrangements under which people and firms in such areas can be made to feel that support for their investment is coming direct from the Community and is thus a direct consequence of British membership, and that the fund is not simply a vehicle for channelling money between governments. We may in the end decide that the balance of advantage lies in the latter course. But until we have had time to think this through it would be a mistake to appear ‘anti communautaire’ in the present and much more limited context of the Feoga fund.7 By 1973, however, it was evident that EU funding would not be additional to UK regional expenditure. An official from the Cabinet Office advised: In a sense we are now asking ourselves whether we can look at the financial return on the basis of the next three years and then hope for a fundamental reappraisal of the policy after 1976. But in the short term the financial return is all important on the policy approved by Ministers and adopted by the Commission’s outline proposals. For reasons which the Treasury will explain in detail our policy objectives provide for payments from the Fund which will replace or refinance existing national expenditure. Otherwise there would inevitably be what you call a ‘further burden to this country’ in exchequer terms.8 A minute from a civil servant conveying the position of the Chancellor of the Duchy of Lancaster was even more blunt: At the Summit, one of our main aims, which we achieved, was to obtain agreement on a commitment and a timetable for a Community Regional Policy including a Regional Development Fund to be financed from the Community’s own resources. We emphasised the need for a Community Regional policy to help incorrect imbalances which might otherwise make it impossible to forgo the use of the exchange rate as we move progressively towards Economic and Monetary Union (EMU). But our short-term objective was essentially to get a substantial net return from the Community to offset the cost of us of the CAP. We saw the Community Fund as a means of transferring part of the cost of our own regional measures from the United Kingdom budget to the Community Budget, rather than as a source of additional funds for the regions.9

40 Scotland and the EU’s structural Funds This prompted one Scottish official to draft a note in the hope that the Scottish Secretary might lobby the Prime Minister behind the scenes. It read: I agree we cannot expect a Community policy to replace what we are doing nationally for the regions, but I do feel strongly that we need to make a start now with a genuine Community policy which would start by complementing our own measures and gradually assume more importance as we move towards Economic and Monetary Union. Whilst reimbursement of our own national expenditure is clearly important, if we limit ourselves to that, it may well prove difficult to negotiate. The chance we have now to initiate a Community policy may not recur; and it is important politically that we should be able to demonstrate that our Development Areas have something to gain from EEC membership and that the benefit of a common policy is not confined to the Exchequer.10 Whether such a letter ever reached the Prime Minister remains a matter of conjecture but at the very least it exemplified the sense of alarm at the Scottish Office that a window of opportunity for Scotland had been missed. As will be discussed below, ‘additionality’ remained something of an enigma well into the 1990s.

The Funds’ reform: the regions as partners To begin with, EU aid was implemented on a piecemeal basis. Whether their regions required European assistance or not, the Member States were allocated a fixed annual quota under the ERDF. The first hint of change emerged in 1979 when the European Commission was given the authority to assign a proportion of ERDF monies outside the quota arrangement, though it applied to just 5 per cent of the ERDF at most. There was a further modification in 1984 when a two-tier scheme was introduced. A Member State was automatically eligible for a minimum quota but there was no guarantee that it would be awarded the maximum figure since it had to compete with others in the Community.11Thus by 1984 although the Member States still exercised considerable control over the allocation of the ERDF, the EU was already attempting to assert its influence over the distribution of European aid. Even so, from the EU’s perspective it was not intended that this policy would replace the existing regional policies of the Member States, it would complement them (i.e. it was to be additional). Moreover, it was not even termed a regional policy as such; instead it fell under the euphemism ‘economic and social cohesion’. The EU recognised however, that a comprehensive funding programme was integral to European integration. Under-performing regions were detrimental to the EU’s economic growth. It therefore made sense for functional reasons for the weaker regions to be assisted. As such, economic and social cohesion was indicative of the EU’s ‘regionalisation’. It was also recognised that the inception of the single European market, which involved the removal of barriers to the free

Scotland and the EU’s structural Funds 41 movement of labour, capital, goods and services, would leave some regions vulnerable to competition from market forces. The SEA therefore contained a reference to the need to review structural Funding, which a short while later was duly undertaken.

Priority objectives in 1988 Objective 1: promoting the development and structural adjustment of the regions whose development is lagging behind. Objective 2: converting the regions, frontier regions or parts of regions (including employment areas and urban communities) seriously affected by industrial decline. Objective 3: combating long-term unemployment. Objective 4: facilitating the occupational integration of young people. Objective 5: with a view to reform of the common agricultural policy; (a): speeding up the adjustment of agricultural structures. and (b): promoting the development of rural areas. Source: Council Regulation (EEC) No 2052/88, Article 1. [c]

In the aftermath of the review, the European Commission called for a doubling of the financial commitments allocated to the structural Funds, under the ‘Delors I’ proposals. Despite British doubts, Delors’ package was agreed at the European Council in Brussels during February 1988.12 One of the most far-reaching consequences of the 1988 ‘reform’ was that the quota system was abandoned in favour of a scheme based on priority Objectives. Aid would be available on the basis of a locality’s status and its ability to meet socio-economic criteria which had been pre-determined by the EU. For example, eligibility under Objective 1 depended on a locality having a GDP of 75 per cent or less than the EU average. The aim was to avoid spreading European aid too thinly across the EU, as had been the tendency before 1988. The 1988 reform of the structural Funds was held to be something of a watershed. In part this was because it was underpinned by a series of principles, one of which was based on the ideal that the regions would be ‘partners’ alongside the EU and their state governments. In addition, it was agreed that EU aid should be concentrated in those territories that needed it most. The Funds were no longer to be allocated to the Member States on a piecemeal basis, as had been the case hitherto; it was agreed that there would now be multi-annual funding programmes. From this point on, the Member States in theory took something of a back seat

42 Scotland and the EU’s structural Funds when aid was applied for. The onus would now rest with regional partnerships13 to demonstrate whether their localities met the criteria of eligibility. The funding partnerships would also consist of a mix of governmental and non-governmental actors. If their submission were successful they would be awarded EU aid under one of the multi-annual funding programmes. The premise that regional actors would from henceforth be partners in their own right was a reflection of the ethos that the allocation and implementation of EU funds should not be a top-down process but also a bottom-up one. In effect, it was supposed that where possible, the entire arrangement would be non-hierarchical save for the twin prerequisites that the EU would firstly need to acquire sufficient monies from the Member States for the Funds and then secure their agreement on the criteria which would determine their allocation. From that point on, it rested with the regional partnerships to argue their case successfully. In principle therefore, where possible, the allocation of EU Funds was to be technocratic. The allocation of aid was to be based on merit, it would be concentrated where it was needed most and it would not replace existing regional funding by the Member States; it was to be ‘additional’ to that. When further monies were allocated by the Member States to the Funds in the aftermath of the TEU under the Delors II ‘package’, there was no radical reform on the lines of 1988 and partnership remained a key principle. As far as the funding arrangements were concerned, the UK government adopted a twin-track approach during the 1980s and the 1990s. Initially it would be hostile to any changes that would enlarge the funding cake, as this could prove costly for the UK. Then it would try to garner the biggest slice for Britain. When the Funds’ resources were being negotiated, the Treasury was the leading protagonist. Its main concern was that since the UK was a net contributor to the EU, there should be no increase to the Funds’ budget.14 Once the budget had been agreed, then the Department of Trade and Industry (DTI) tried to secure the maximum funding envelope for the UK during its negotiations with the Commission and the Council. Even at this point the Treasury could still act as a countervailing force. It had no wish to increase public expenditure in the UK and that included the implementation of European aid. Only after the UK was allocated its portion of the Funds, could the territorial departments then negotiate their own share.15 When the territorial ministries submitted bids for their slice of the Funds the DTI had a considerable bearing on the outcome. Although a DTI official was keen to maintain that his department was little more than a ‘facilitator’ there was more to it than that, as he explained subsequently: As the lead ministry the DTI does have ministerial and administrative authority over the Scottish Office though generally there is a common consensus. Over time a UK-wide view has evolved as to how the Funds are to be applied. This has originated in a semi-formal way as a result of question and answer sessions e.g. when co-operatives came to the fore, what was the UK position to be? This has led to a distinct set of guidelines as to how the Funds are to be applied to the UK as a whole, but they are highly confidential because of their potential

Scotland and the EU’s structural Funds 43 value to lobbyists. The guidelines might change over time, e.g. in 1989 local authorities took a large slice of the Funds but at present the tendency is to widen the net to include new partners such as airports or business links. It is therefore likely that under the 1994–99 programmes that local authorities will take a proportionally smaller share.16 Therefore Scottish applicants had to cross yet another fence if they were to stand a chance of success. Apart from meeting the EU’s criteria so that they could be awarded Objective 2 status, for example, their funding proposal also had to be compatible with the UK-wide ‘common consensus’ which in effect were guidelines laid down by the DTI. This aspect of the funding process was an additional burden for potential applicants in the regions. In the first place, as the civil servant from the DTI stated, the guidelines could change, with the result that some actors were less likely to be successful at different points in time. Secondly, the Commission produced its own list of measures which determined whether or not an application for assistance would be eligible for European funding. Some Scottish actors found the arrangement confusing, not least because they were uncertain over whether the Commission or the DTI had overall authority. A senior official from Fife Regional Council observed: There is a muddle over who exactly is responsible for taking the decision to allocate funds to a region. Both the Commission and the DTI maintain that the other has responsibility for this, so we have to lobby both groups. Once we have secured eligibility for funding the next aim is to get on the DTI/ Commission list. It is unclear what criteria are used to allocate finances to a region. Unemployment is one factor but the Commission wants to use unemployment forecasts in future, something that we are keen on but the DTI is hostile to.17 This uncertainty rather calls into question how the partnership principle was being applied. It also raises the question as to whether the regional ‘partners’ had sufficient authority to influence how European aid was distributed in their localities. After a region had secured its Objective 1, 2 or 5b designation, there was a further round of negotiations between the European Commission and the partners in Scotland. There were two ways whereby a Member State, or a designated actor, could submit an application for funding for a particular locality. One option was to produce a Regional Development Plan which would be incorporated into a Community Support Framework (CSF), within which there would be one or more Operational Programmes (e.g. the Tayside Operational Programme for 1992– 93). Alternatively the Member State, or a designated actor, could produce a Single Programming Document (SPD) which would also be based on a Regional Development Plan. The second method was supposed to save time and the Scottish Office subsequently adopted it. Although the SPD option appeared to be relatively straightforward, that was not to be. In the first instance a Regional Plan Team, chaired by the Scottish Office,

44 Scotland and the EU’s structural Funds prepared regional development plans for the Scottish regions (e.g. one for Objective 2 in the east of Scotland and a separate one in the west). However, when the Regional Development Plans were despatched to the European Commission the latter had its own views. An official from Fife Region explained: The Scottish Office chairs a Plan Team for each region and expert advisers set out the strategy and the method of delivery for each particular area. The strategy itself is quite a complex issue. What does it mean? Formerly central government did this but now the local authorities and their partners are involved. They sit down and discuss it with the Scottish Office before the strategy is submitted to the Commission. This can be frustrating because the Plan Team will have arrived at an agreed strategy based on the lowest common denominator over an eighteen-month period. At this point the Commission may reject the strategy on the grounds that it is not a strategy at all. For instance the Commission wants to see quick measurement, so that an audit team can measure how many jobs have been created within two years. But the Commission does not understand the process of creating jobs – something that can take longer – while the government is more interested in the flow of money and controlling expenditure. So what we need in order to simplify things is either a clear strategy laid down by the Commission or a consensus arrangement. You cannot have both.18 Hence, despite the partnership principle, the Commission could override local partners. All in all, as far as the implementation of the Funds was concerned, the Commission could therefore be highly influential.19 As the official suggested, it would have made more sense if the Commission had decreed what the strategy should be. However, then it would be self-evident that the implementation of the Funds would be a top-down process. Others too had their doubts. An official at Tayside Enterprise commented: ‘To a certain extent the funding process comes from the top down. The partnership can identify priorities but what we started out with was a long way from where we ended up.’20 A director of another Local Enterprise Company observed: ‘Fife has been good at getting money. The problem is that most of the money from the EC has been supply led in the sense that they tell us how to use it instead of it being demand led, thus responding to local needs.’21 Some believed that this situation had arisen because the government could no longer draw on the support of the other Member States; at the implementation stage it had to fend for itself and it was out-gunned by the Commission. An official from Grampian Regional Council claimed: We submitted our own strategy but the Commission had its own views and we had to submit a standardised text on the Commission’s lines. You need to be aware that at this stage of the funding cycle the relationship between the Commission and the Member State is much more even-handed. The Member State is dealing with the Commission on its own and cannot look for allies

Scotland and the EU’s structural Funds 45 amongst the other Member States. At this point decisions do not go through the Council of the EU – but they are rubber-stamped by the ‘Star’ Committee [the management committee on agricultural structures and rural development, comprising representatives from the Member States]. So at this stage the Member State was dealing with the Commission in its entirety on the individual plans. So the Commission is much stronger when conducting bilateral negotiations than multilateral ones.22 A Scottish civil servant in the European Funds and Co-ordination Division made a similar point: It is harder to influence decision-makers at the implementation stage, whereas at the designation stage officials like ‘X’ [Scottish Office] and ‘Y’ [DTI] are in direct contact with people like ‘Z’ at the Commission. When the areas are being designated it has a higher profile. It can be more politicised and so a small group of senior officials deals with it. However at the implementation stage a mass of lower-grade officials in the Commission become involved. They are more focused and narrow in their approach. They tend to be the desk officers and deal with the nuts and bolts. But with so many people involved it becomes impossible for us to have any significant influence. For instance, it would mean someone from the Scottish Office having to negotiate with these people every time there is a problem, and we do not have resources for that. If we only become involved on odd occasions we would run into problems of bias, e.g. supporting one case on behalf of Grampian but not Tayside.23 That leads us to the issue of why the Commission should have disagreed with its Scottish partners in the first place. According to a Scottish official an underlying cause was that the Commission had not only adopted a pan-European approach to the implementation of the Funds, there had been times when it had little faith in the regional partners. He said: The Commission has to take the macro approach and this leads to tension between it and the Scottish Office/partnership over what is effective for their locality in Scotland. We also have the impression that the Commission does not trust the implementing authority and this can add to our problems. The SPD document was intended to short circuit the red tape during negotiations over what would be eligible for funding but in the event it led to a lot more work because of disagreements between the Scottish Office and the Commission. Even after the Commission had settled how much funding was available for an area, the arguments continued right into the PMC [programme monitoring committee] meetings. This should not have occurred. The SPD set out the broad aims and principles, the measures and the sort of projects that would have been eligible. It should have been acceptable to the Commission on the grounds of subsidiarity.24

46 Scotland and the EU’s structural Funds Such antagonism over the Funds’ implementation may have been little more than the Commission and the UK government squaring up to each other and it could be supposed that the fact that this had occurred in relation to Scotland was purely coincidental. Nevertheless, during the early to mid-1990s the regional partnerships were in the unenviable position of being required to draft a strategy (plus the measures relating to the implementation of that strategy) in an SPD which could then be rejected by the Commission. Then there was the question of additionality; by the 1990s this was of considerable significance, as EU funding to Scotland had increased once more. In theory this had been resolved by the Kerr-Millan agreement in 1991 whereby the UK government had agreed to abide by the additionality principle. But whether that was so in practice remained an issue of some complexity.25 An official at the Scottish Office maintained that there were two sides to additionality. He observed: In essence it means the absence of substitution, i.e. Euro Cash not being used as a substitute for national spending. Each Member State has to submit an expenditure summary for each EC Objective but there is no disaggregation. So that can be problematic, as there is no proof that it is additional in the case of particular projects. However, if national expenditure has not decreased then additionality has occurred [in the sense that EU aid would be genuinely additional to existing national expenditure]. A second dimension to additionality is that funding has created a specific project. From his perspective if on occasion additionality failed to materialise, the fault lay with individual councils. He continued: Each year the Local Enterprise Companies and the Local Authorities prepare their annual budgets which forecast their expenditure. If they are liable to get EC funding they need to take account of that, so that the additionality element is taken into account. They then have to bid the Scottish Office’s local government finance department for more money and then if they are successful, the annual settlement will take account of EC funds.26 This sounds relatively simple and several Scottish-based consultants suggested that to some extent Scottish councils were at fault during the 1990s.27 In theory a local authority merely had to include a provision for EU aid in its budget for the following financial year and the matching aid was then met by the government. Yet, a senior figure at the Scottish Office acknowledged that until the KerrMillan agreement additionality had not been ‘automatic’. But he did suggest that it might have acted as leverage during the Secretary of State’s negotiations with the Treasury when he submitted his annual bid for government expenditure in Scotland. In so doing it would enable the Secretary of State to argue: ‘I am helping the Treasury by reducing the net contribution to the EC Budget, so I need a quid pro quo.’ However, the official added that government departments would have to deduct additional money for Scotland from their own programmes but he then

Scotland and the EU’s structural Funds 47 maintained that after the Kerr-Millan agreement special provision was made for matching funding.28 How far that was really the case is open to debate.29 For example, Strathclyde Regional Council faced a number of difficulties as a result of the Scottish Office’s budgetary procedures. According to one account, the latter deliberately deducted £20 million from Strathclyde’s budget for roads and transport during 1993–4. The intention was that the shortfall would be recouped from a combination of the structural Funds and ‘additional expenditure’ from the government. An official from Strathclyde’s Economic Strategy Section explained: Under the ‘new’ arrangement the Scottish Office removed £17 million from the Region’s 1993–4 capital budget on the assumption that the Region would secure the money from the ERDF. This ensured that the Region had to work hard at its relationship with the EU, in order to realise its capital expenditure plans. Another technique of the Scottish Office is called ‘top slicing’. It occurs when monies are removed from the capital budget deliberately so that they can be inserted later as ‘additional’ funds to the ERDF. Thus in the 1993–4 budget for roads and transport, which amounted to £90 million, the Region was only allocated £70 million and needed to make up the £20 million via the EU and additionality from the UK.30 If this is true, and there is no reason to suppose that it is not, it is clear just how the government of the day manipulated additionality post-Kerr-Millan. It was not simply a matter of special funds being held in reserve or councils applying too late – the government deducted money from Strathclyde’s budget so that it was apparently able to keep to the rules without there being any genuinely additional funds whatsoever. Strathclyde was by no means alone in articulating its concerns – Highland Regional Council, Banff and Buchan and no doubt others each had their own problems.31 When the Scottish parliament’s European and External Relations Committee32 subsequently conducted an inquiry into the Funds and their implementation, MSPs’ reservations on additionality were self-evident.33 Yet, the ensuing report cited testimony from the European Commission whereby the latter maintained that it ‘had no indication that additionality was not being respected’.34 But that presumably was as it stood then in 2000 (when the inquiry was underway), as opposed to the 1980s and 1990s. For example, the report cited evidence from the European Court of Auditors covering the period 1989–93, which stated that ‘the situation regarding the verification of additionality in the UK was considered unsatisfactory’.35 The information provided to the Court of Auditors for 1994–1999 was reported to have ‘improved’ but it ‘was still too early to establish whether the UK has complied with the regulation’.36 The committee’s report continued: The verification of additionality at Scotland level would enable the Committee to answer the important question of whether there is a net impact on overall expenditure in Scotland. This has not been possible [the Report’s italics]37

48 Scotland and the EU’s structural Funds For their part UK ministers and their departments were of little assistance to MSPs: Although requests were made to UK Government Ministers to attend the Committee’s inquiry meetings, they declined. The Committee feels that the subsequent written information provided was not sufficient to verify the net impact of EU funding on economic development spending in Scotland as a matter of regret.38 The reason why UK ministers declined to attend was in part because they were already accountable to MPs at Westminster and they maintained that there was no need for duplication. The European committee was not alone in its inquiry into EU Funds, however, so also was Holyrood’s Finance Committee and here too there was cause for concern about the reluctance of UK ministers to provide oral testimony. Mike Watson MSP, who was later to become a minister in the Scottish Executive also had his doubts about the refusal of UK ministers to appear before Holyrood’s committees. This was because Wendy Alexander, then a minister in the Executive had herself given evidence to the Scottish Affairs select committee at the Commons just a few weeks before. He observed: There is a lack of consistency in the matter which needs to be resolved. As Convenor of the Finance Committee, I can say that we were unanimously of the opinion that our inquiry into EU funding could not be completed without Treasury evidence. The Committee eventually had to accept this in writing, while the European committee completed its report without any UK-level input, a conclusion which was less than satisfactory. Sooner or later this tugof-war will re-occur. (Watson 2001: 184) All in all therefore the issue of additionality remains something of an enigma, albeit that by 2000 this appears to have been resolved satisfactorily.39 Whilst successive UK governments have been the main culprits, the EU itself is also open to question. Since the four principles that underpinned the structural Funds were not applied as was originally intended, this raises the question as to whether the EU itself shares responsibility for the deficiencies of the funding programmes in Scotland. If so, were its regionalist credentials open to question? The concentration principle was largely forgotten when the Council met to consider which localities should be eligible for Objective 1 status in 1993 (albeit paradoxically this was potentially advantageous to the Highlands and Islands). The partnership principle appears to have been of little tangible benefit to Scottish actors and additionality was ephemeral to begin with at least. Only the programming principle seems to have worked in the sense that there were multi-annual programmes. However, there are good grounds for supposing that the implementation of the ERDF suffered from ‘short-termism’ (Turok et al. 1994: 81). This was certainly evident at the implementation phase, when delays in approving Objective 1 meant that the partnership

Scotland and the EU’s structural Funds 49 had only a few months to allocate millions of pounds for the Highlands and Islands’ programme. Borders suffered from a similar problem over 5b. By April 1997 the European Commissioner with responsibility for Social Affairs himself had admitted that the implementation of the structural Funds required ‘less bureaucracy and more focus’ and that the Commission should adopt a more handsoff approach.40 However, in spite of the flaws which under-cut the EU’s economic and social cohesion policy, there is little reason to suppose that the Scottish funding partnerships or their management committees were inherently defective either in terms of their professionalism or probity. Individuals who had accumulated experience of the Funds over a number of years administered them efficiently and their primary aim was to ensure that the implementation of the Funds fell within the EU’s rules. The same could be said in relation to civil servants at the Scottish Office. Notwithstanding the issue of additionality, they too were concerned primarily with ensuring the funding process ran as effectively and efficiently as possible. It could also be argued that if the EU funding arrangements had not existed in the first place there would not have been a quasi-regional policy in Scotland during the Thatcher and Major years when there was a marked antipathy to economic planning. It is also self-evident that Scotland secured sizeable amounts of EU monies during the 1980s and 1990s, thereby ensuring that there was substantive aid for economic development. But this aid should have been in addition to existing UK expenditure and there is reason to doubt whether this was so even by the mid1990s. More particularly, as the Scottish Office’s own records affirmed, EU receipts were intended for the Treasury not Scotland per se – much to the consternation of Scottish civil servants in the early 1970s. That such a situation could have arisen, and that Scottish MPs at Westminster appeared unable to do much if anything about this raises questions about democratic control and accountability prior to 1999. That said, as far as Scotland is concerned, EU funding is set to wane. In so doing, from the UK’s perspective this calls into question the future worth of the EU’s economic and social cohesion policy. Early in 2003, Gordon Brown, the UK Chancellor called for the ‘devolution’ of regional policy from Brussels. Writing in The Times he explained: A recurrent theme in the European convention is that an enlarged Europe will work well only if it is a more centralised Europe. I disagree. And today, as we make proposals for a new European regional policy, we call for greater devolution in economic decision-making from the European Union to the regions and nations of our country. With our plans to increase UK funding for regional policy, devolve decision-making power to the regions and return key regional policy responsibilities from the EU back to Britain, the future control of regional economic policy is moving from Brussels to London and then from Westminster to the nations and regions themselves.41 This antipathy towards EU centralisation is not unexpected, given that such sentiments have long been the hallmark of successive senior British politicians

50 Scotland and the EU’s structural Funds over the years. Equally, since the UK is unlikely to benefit markedly from future EU funding post-2006, because the lions’ share will be allocated to the accession states from Central and Eastern Europe, the Treasury’s clarion call for devolution should not raise eyebrows either. If ERDF receipts no longer acted as a rebate for the UK’s contributions to the EU and the implementation of the Funds was too bureaucratic then it would be illogical for the UK to continue to support the ERDF in its present form.42 In contrast, the 1980s and 1990s, were decades when a sizeable part of Scotland was technically eligible for significant sums of EU money. Sums that were supposed to have been over and above those that were allocated towards regional assistance by successive UK governments. As Scottish civil servants had originally forewarned in the early 1970s, there are grounds for supposing that this became a squandered opportunity. These Funds were designed to assist those parts of the EU, which were suffering from disparity and which were vulnerable to the effects of the Single Market. Both, it could be said applied to Scotland, a country which lay on the EU’s periphery – as was so with Ireland – itself a major recipient of EU aid during this era. From the perspective of Scottish actors during the 1990s the funding process could have been improved upon. It was overly hierarchical. The allocation of EU monies was politicised right from the moment the Member States met to decide the criteria of eligibility. At times there was too much interference by the European Commission over exactly how EU aid was to be employed in Scotland. The UK government also had its own agenda, which at times it did not hesitate to put into effect both in relation to additionality and the criteria of eligibility. This in itself was indicative of its status as gatekeeper. All in all the implementation of the EU’s economic and social cohesion policy in Scotland was a far cry from the image of sub-state autonomy promoted by some in multi-level governmentalist ‘camp’. Nor does it come as much surprise that when the chief executives of Scotland’s local authorities met during 2002, one of the issues on their agenda was consideration of whether they should attempt to claw any monies back under the additionality principle. These receipts were those that Scottish councils had originally been entitled to prior to 1991. There was little optimism that this would bear fruit.43

5

1973–1999 A Westminster by-pass?

As early as 1981 we ‘found’ MEPs and decided that the European Parliament was not going to go away. We were probably one of the first organisations to lobby MEPs collectively. We wanted to influence them in the decision-making process. We invited them to lunch. However, we were not impressed with them. They were too keen to listen to their own voices, arrived over an hour late – some of us were senior executives – they were improperly dressed for a formal luncheon i.e. sweaters, and they had little idea of our role. In a way they were just playing at being MEPs. But from that time on we built on the relationship. (Chief Executive of a Scottish employers’ trade association, interviewed c1995)

Despite the difficulties which Scotland faced over the structural Funds, that did not deter a growing number of Scottish interests from developing their own links with the EU. When the Europeanisation of Scottish institutions and organisations neared its climax in the aftermath of the SEA, it seemed for a moment that the UK government risked losing its status as gatekeeper. Whilst it is tempting to believe that there really was such a thing as a Westminster by-pass,1 the actuality was rather more modest. On the one hand, Scottish interests could, and did, join pan-EU pressure groups and lobby MEPs, the CoR, other Member States’ governments and the Commission with varying degrees of success. But few ignored the UK government entirely. In part this was because of its potential influence in the Council. It was also because the government was responsible for overseeing the implementation of EU policy within the UK. For the most part, however, EU affairs remained the preserve of the lead2 departments in London. The Scottish Office, as a territorial branch of the UK government was responsible for aggregating Scottish interests in relation to a particular EU proposal and then transmitting this upwards to whichever lead department was responsible for representing the UK in relation to the policy in question. Whilst the Scottish Office clearly underwent Europeanisation, the notion that it pursued a form of para-diplomacy is less tenable by virtue of its status. That is to say that its foreign affairs’ agenda was largely subsumed within that of the UK government. Some of its officials were seconded to UKRep and no doubt many others participated in the Council’s

52 1973–1999: a Westminster by-pass? working groups as a part of the UK delegation. As a consequence, if any paradiplomacy did actually occur this would be most likely to be pursued by Scotland’s regional councils3 and Scotland Europa in Brussels. But whether their activities really amounted to para-diplomacy in practice is open to question. Around the time of the UK’s accession, Scottish actors4 were on something of a learning curve. The Scottish Office was best placed, because as a territorial department of the UK government it had for some while taken a close interest in the EU and its policy processes. During this era, the EU’s remit was relatively modest compared with the competencies which it currently holds. Nonetheless it stood to affect a swathe of sectors including agriculture, fisheries, economic development, whisky and engineering. From the Scottish Office’s perspective a key priority was to ensure that some of its staff were seconded to UKRep in Brussels. An official observed in 1971: We foresee that in certain fields it may be desirable to have Scottish Office men included in the UK representation in Europe. Just what these fields will be is a matter which will have to be discussed with our colleagues in Whitehall (and may of course, vary from time to time with changes in EEC objectives) but you will be aware of our particular interest in the preservation of special arrangements for regional development.5 It was hoped that up to four of its civil servants would be based in Brussels, though to begin with they settled for just one.6 At the same time estimates of staff requirements were quite modest. This amounted to about twenty-five field staff and fifteen inspectors, with personnel from other departments bringing the grand total to fifty.7 That was a far cry from the 1,200 Scottish civil servants who dealt with the EU in the 1990s, though to be fair the last figure did not relate to dedicated staff and was purely an indication of the number of officials who had an ‘involvement’ with the EU. Nevertheless, the comparison is an interesting one. After British entry in 1973 the Scottish Office was soon engaged in the EU’s policy processes, especially the implementation of the agriculture and fisheries policies. By the late 1970s and on into the beginning of the next decade two factors added to its involvement with the EU. Regional councils like Strathclyde were intent on forging their own links with the EU’s institutions in order to acquire European aid. According to one observer, as Strathclyde accumulated expertise, the Scottish office could not afford to be seen to be lagging behind.8 In addition, it was under pressure from business and commerce to promote and defend Scottish sectoral interests as competence was transferred to the European level. For instance, it was engaged in the negotiations on the framework of the Common Fisheries Policy (CFP) throughout the 1970s and on into the early 1980s. In some respects Scottish local government ploughed a similar furrow, save for one significant difference. Unlike the Scottish Office, councils had a freer hand as to whether they should take the first steps towards Europeanisation. This was in part because the EU’s impact on their activities was potentially modest during the 1970s and early 1980s. Consequently, aside from the desire to secure EU funding

1973–1999: a Westminster by-pass? 53 (the true value of which was questionable during this period), Europeanisation could stem from little more than the enthusiasm of a senior council leader. Western Isles was one such example, as an official explained: We first became involved with the EU via the Conference of Peripheral and Maritime Regions (CPMR), which is tantamount to a political lobbying organisation. This council was particularly influential in setting up the CPMR’s Islands Commission. Essentially all this was due to one politician who liked going to Europe. We also viewed it as an avenue for funding. Our involvement in the CPMR was neither nationalistic nor altruistic. You need to bear in mind that this locality voted against membership [of the EEC] in the 1975 referendum. The Council nevertheless saw it as beneficial to become involved in European matters. Our Convener became president of the Islands Commission and that degree of interest was then reflected throughout the Council in general. So the Europeanisation of the Council was a gradual process, with the Chief Executive and the Director of Planning being responsible for EU matters on a part-time basis around 10 years ago.9 The first steps towards the Europeanisation of Scottish local authorities were by no means assured, however. Some council leaders desisted from involvement by virtue of their Euro-scepticism or because they lacked the confidence that they ‘could or should influence the EU’.10 For others, the structural Funds were a driver for Europeanisation. In 1976 Dumfries and Galloway Region appointed its European Liaison Officer (ELO) – one of the first in Scotland. That coincided with a ‘big push’ from the European Commission ‘as many of the councils in Scotland had failed to take up their quotas’.11 The situation for non-governmental actors during the initial period of the UK’s membership was not too dissimilar from the councils or the Scottish Office but there were several variables which could affect their Europeanisation. First, for the most part they lacked the financial and human resources compared to governmental actors. Second, EU Funds were of little immediate consequence to non-governmental actors (an exception being Scottish farmers). Third, a key determinant was the extent to which the EU impacted on their activities. The net result was some sectoral pressure groups, such as the fishermen, began to lobby the EU quite early on, whilst others did not. One of the first tasks, for those affected, was to learn about how the EU worked, as the Scotch Whisky Association (SWA) soon discovered. Shortly after the UK joined the EU, the SWA was approached by the distillers for information on the EU and that coincided with an influx of legislative proposals from the Commission relating to bottle sizes, cereals and metrification. So the SWA had little option but to be involved with European issues. Although it decided against establishing its own office in Brussels, it was self-evident that it had to develop its own linkages with the EU. But the first problem was to find its way around the ‘Brussels maze’. Sir James Marjoribanks, a retired diplomat with a knowledge of the EU, was therefore recruited to the SWA’s board and he enabled

54 1973–1999: a Westminster by-pass? the SWA’s Director General to meet the ‘movers and shakers’ in Brussels. The (former) Director General observed: He took me under his wing and opened doors for me. Within six months I knew all the Commissioners and Chefs de Cabinet who were going to have an impact on the SWA. So I began to know the state of play on all the draft Directives and Regulations.12 Even though the ministries in London acted as the main channels of influence for the SWA, the organisation did not neglect the Scottish Secretary of State. It updated him on any developments in the EU that were of concern to the sector. Almost right from the beginning of its relationship with the EU, the SWA set out to influence the key players. Apart from Sir James on the Board, the SWA also employed a lobbyist in Brussels during the 1970s and 1980s who would telex draft EU proposals to the SWA before the Director General visited the Commission’s Chefs de Cabinet. At the same time the SWA began to develop its own linkages with the EP and the Economic and Social Committee. The aim was to cover as many of the ‘levers of power’ as possible even if some were more influential than others. Similarly, the SWA developed a close rapport with UKRep.13 At the UK level, the all-party Scotch Whisky Industry Group at Westminster was an additional pressure point. Its members could submit parliamentary questions on behalf of the SWA, and MPs from the governing party arranged meetings with the Chancellor or other ministers.14 That was particularly important in the run-up to the UK Budget, as all too often the duty on whisky was increased. In so doing the latter undermined the SWA’s position when it called for the harmonisation of duty across the EU (see below).15 By the second half of the 1980s, the EU’s impact on Scotland became even more far-reaching. As a consequence, the transactions between the Scottish Office and the EU increased markedly. The reform of the structural Funds in 1988 meant that the Scottish Office’s Industry department now had to justify why Scotland’s regions should be eligible for EU funding and devise an implementation plan, whereas, according to one official, up until then his section had been little more than ‘a post-office’.16 The Scottish Office also took a keen interest in the Single Market. In turn, the EU’s environmental policy was having an increased impact in Scotland, especially in relation to water and sewerage services, although to some extent that had begun in the late 1970s. So, it would be misleading to suggest that the impact of the EU was constantly on an upwards curve as far as individual divisions were concerned. An official observed: It was more a case of extra staff being allocated to EU-related work simply because the volume of legislation picked up in the late 1970s and early 1980s. Then it quietened down for a while before picking up again from the end of the 1980s to the present day. So the number of staff partly depended on what was happening in the EU at any one time. Certainly the SEA was a factor as there was a rise in legislation after 1987, though this should not be over-

1973–1999: a Westminster by-pass? 55 emphasised. In some of our divisions staff numbers have gone up and others down.17 Nevertheless in general the workload of civil servants increased substantially. That was especially the case where European Directives necessitated UK legislation or where their implementation had to be audited, as the official went on to explain: One factor that was very significant was that there were a series of court cases in the late 1980s over implementation. At that time we were issuing circulars in order that the implementing authorities complied with EU legislation but since then we have sought to transpose EU legislation into national legislation. That has also had an impact on our staff numbers, as people now have to draft legislation. As the volume of legislation increased, so too did the requirement that we had to report to the Commission on how they were being implemented. That is very labour intensive and it also added to our workload from the late 1980s.18 As the volume of European legislation multiplied, it became clear that some of the ministries in London were either unable or unwilling to handle the increased workload, whilst at the same time civil servants in Scotland wanted to become involved more directly in certain areas of EU policy. Though the lead ministries retained their strategic responsibilities, the result was a gradual decentralisation of a number of EU-related functions from London to Edinburgh as the 1980s drew to a close. That led, for example, to the Scottish Office’s Education Department becoming more directly involved in the EU’s education policy in 1990 and its Environment Department assuming overall responsibility for conservation in Scotland a year later.19 A transfer of functions followed over the implementation of the European Social Fund. The Scottish Office’s Education Department (SOED) provides an interesting model of the Europeanisation process. The original stimulus according to an official was the SEA in 1987. He explained: The real impetus for change originated in the late 1980s through a combination of people and circumstance. The trigger was the SEA in 1987. It promoted the movement of goods, capital, services and people. It was to have a profound effect in Scotland. A lot of people said here is a market opening up. There will be a need for education here. In the 1950s education covered what do you know about Europe? During the 1960s and 1970s the emphasis was on school trips across Europe. But after 1986 the emphasis was no longer about or through Europe. Our kids will have to be educated for Europe. This was something that never really caught on in England. The SEA was important because of what followed from it.20 By the late 1980s the Department of Education in London was becoming overloaded and it made sense for the Scottish Office’s own education department to undertake European work. He observed:

56 1973–1999: a Westminster by-pass? This was the result of events that had taken place in the late 1980s. Firstly so much was happening that London could no longer cope. It was therefore no good relying on London. Secondly, the education system in Scotland is quite distinct, so we needed to know things that the Department of Education would not necessarily pick up.21 When these administrative functions were decentralised from London to Scotland in 1990, that led to the creation of an International Relations Branch within the SOED. An official from St Andrew’s House was then permitted to attend the Commission’s Education Committee and the Council’s working groups. This enabled the Branch to develop its own contacts with ministers from the other Member States and with officials at the Commission. It also allowed the Scottish Office to contribute to the EU’s educational policy – albeit as part of the Department of Education’s team. Thus, Europeanisation could evolve incrementally.22 The findings of a survey of its European responsibilities that was undertaken in 1990 confirmed the depth of the EU’s encroachment into the Scottish Office’s activities. It revealed that 20 per cent of its staff, amounting to some 1,200 personnel, were performing EU-related work and that 300 separate EU-related functions were being undertaken. Of the 117 Divisions surveyed, 89 had a connection with the EU, whilst 34 gave their European functions a ‘crucial’ or ‘major’ rating.23 All of the Scottish Office’s functional departments had an involvement with the EU, though the Agriculture and Fisheries Department, and the Industry Department, tended to enjoy closer links than the rest, as a result of the CAP, CFP and the structural Funds. Yet the ensuing report emphasised that UK government channels remained an important conduit between Scotland and the EU. Understandably, therefore, it contained the dictum that on no account should Scottish officials open up their own (formal) linkages to the EU without clearance from the lead department first.24 It was also stressed that St Andrew’s House should not undermine the government’s position when it sought to influence the EU. Yet the report also indicated that the Scottish Office should cultivate its own (informal) links with Brussels in some instances. For example, it was proposed that Scottish civil servants should remain in Brussels for an extra ‘day or two’ once any formal meetings were over so they could develop a closer relationship with EU officials.25 It was also intended that they should encourage reciprocal visits to Scotland by Commission staff.26 Over the next few years the number of visits undertaken by individual civil servants to Brussels increased by 25 per cent. In 1989 the figure was 200.27 By 1994 this had risen to 250,28 so that on average someone from the Scottish Office was in Brussels every working day over the course of a year, and that figure takes no account of reciprocal trips by staff from the Commission. By the early 1990s Scottish local government had also widened its relationship with the EU. One such example was Central Regional Council. Its EU specialist explained: The Council first appointed a European Liaison Officer in 1990 [. . .] the reason for doing so were the changes to the structural Funds in 1988 and the advent

1973–1999: a Westminster by-pass? 57 of the Single Market, plus a greater awareness of the European dimension for the region as a whole.29 In some respects Scottish councils had little choice but to increase their involvement with the EU. By now the transfers of competence to the European tier could less easily be ignored. Councillor Anderson of Central Region included the following introductory comments in the council’s strategy paper: Since the advent of the single market there is a greater awareness of European issues and the purpose of this strategy is to enable the regional council and its people to participate more fully in the European scene. It is not a matter of choice but one of necessity. Decisions taken in Europe affect us all and will determine the economic wellbeing of present and future generations. Equally there is a continual stream of legislation and directives which impact directly on the regional council.30 As the European Commission became much more relevant to their activities, Scottish regional councils showed little hesitation in forging direct links with Brussels. Partly this was because they not only had to establish in detail what exactly were the criteria for eligibility with regard to the Funds but also whether the Commission would be sympathetic to their requests for structural aid. As the EU’s influence grew, it was also in their interest to learn how European policies were likely to develop in future. Consequently, they and Scottish Non-Departmental Public Bodies (NDPBs), or ‘quangos’, recognised that where necessary, they needed to influence the EU’s wider agenda.31 By this time councils could not afford to be seen in the back seat any longer as far as European integration was concerned. They faced increased pressure from their localities to adopt a pro-active approach. Partly this was because the EU had visibly emerged as a new tier of authority by 1992; it was no longer simply ‘the Common Market’. Equally, at a time when the legitimacy of the UK government was plummeting in Scotland, the EU offered Scots an alternative to Union with the UK; there was now a European political arena which they could participate in.32 At the same time two other forces were at work. As Scottish local authorities became more successful at accessing European Funds after 1988, it became less acceptable for a council to be seen to be lagging behind its Scottish counterparts. That was self-evident in the south of Scotland where both regional councils, which had largely been excluded from funding in the previous decade, were intent on securing EU aid by the 1990s. An official from Dumfries and Galloway explained: There was considerable competition between the regional councils when bids for Funds are submitted but after that, the partnership returns. One of the factors that determines the Council’s approach to the EU and funding is the public perception that it must be seen to do well i.e. if Borders succeeds but DGRC fails, questions will be asked about the officials.33

58 1973–1999: a Westminster by-pass? Central government itself also contributed to their Europeanisation. The channels between Brussels, London and Edinburgh could be inadequate at times, moreover government ministries like the DTI34 and the Scottish Office35 were not supposed to favour one local authority over another. Thus if a regional council wanted to steal an edge on its rivals, it would be advantageous to develop its own linkages with the EU, without having to rely purely on those channels provided by central government. Apparently however, some in the Scottish Office were increasingly nervous of the evolution of direct linkages between the councils and the EU. According to one ELO, after the funding round was complete in 1994, Scottish local authorities were asked to check with civil servants at St Andrew’s House before meeting officials at the Commission.36 Whether the councils were legally obliged to respect such guide-lines is open to question and even if they were, there is little reason to suppose that an SNP or Labour-led council would seek the Scottish Office’s permission before holding a meeting with the Commission. There was unlikely to be much empathy between the two as long as the Conservatives remained in government, especially after they ceased to control any councils north of the Border. Even so, by the early 1990s ‘Scotland Europa’ offered Scottish actors, especially its councils, an additional source of influence in Brussels. Scotland Europa, Scotland’s own ‘representative centre for Scottish organisations’ in Brussels, offered a range of facilities including despatching monthly briefing reports on the EU’s activities to its members, providing a lobbying service, arranging introductions and offering office accommodation. There were also more specialised services for those that required them. Yet, its status was rather indeterminate; it was a subsidiary of Scottish Enterprise and there was no direct connection to the Scottish Office.37 Nevertheless, since the government’s permission was needed before it was set up38 and as Scottish Enterprise fell under the umbrella of the Secretary of State, central government, albeit indirectly, retained ultimate control of its affairs. However, it was symbolically important because Scotland now had a representative office in Brussels. Whether this could really be conceived as an exemplar of para-diplomacy is questionable partly because Scottish civil servants were not stationed there and its staff did not appear to pursue even a quasiform of diplomacy.39 Its primary mission was to gather intelligence and represent Scotland more generally within the EU, especially in those matters relating to the Single Market. The idea of having an office representing Scottish interests in Brussels had attracted support in the late 1980s. There were two strands to this. One was political; this mainly emanated from the STUC and the councils, each of which wanted a form of Scottish representation in the EU which was distinct from that of the UK government. The other strand was economic; this originated primarily from commercial interests, which perceived that Scotland needed improved representation in the EU because of the Single Market. Mazey and Mitchell observed that the Scottish Office was cool to begin with, however.40 One explanation was that St Andrew’s House feared that such a scheme would be over-ruled by the Foreign and Commonwealth Office. Yet, an official who was partly responsible for its formation explained:

1973–1999: a Westminster by-pass? 59 The origins of Scotland Europa can be traced to 1989 when I gave a presentation on setting up a Brussels office to the Scottish Development Agency (SDA). But there was opposition to the idea on the grounds of cost. That was linked to the fact that EU money was going direct to the Treasury at that time. This attitude was a mistake because by the late 1980s there had been a growth in para-diplomacy and trans-national networks in the Community. However a short while later ‘X’ was asked to look into this at the SDA and he in turn asked one of his lieutenants to investigate. He recommended the establishment of Scotland Europa. At that time we had the following concerns. What would be the reaction of UKRep? Would they see it as interference? Then there was the bilateral embassy; they also had their own trade mission – would they welcome another one for Scotland? There was also the Scottish Office. In the event there were no problems. UKRep was not concerned at all – an advantage would be that Scotland Europa would siphon off some of their workload where it related to Scottish businesses. There was no objection from the Scottish Office or the bilateral embassy.41 Hence, even if it originally had its doubts, the Scottish Office eventually accepted that Scottish businesses needed representation in Brussels as the Single Market neared fruition. Equally, it was clear that the new round of structural Funds was of relevance to Scottish local government and more latently the Scottish Office as well. It therefore made sense on functional grounds to have those representing Scottish interests in a single location so that they could co-ordinate their lobbying and exchange intelligence. Scotland Europa exemplified the informal side of the EU’s policy processes. On the one hand it had semi-official status since a governmental body set it up. Yet its personnel accessed various informal networks across the EU. Their modus operandi was the long-term cultivation of personal contacts in the EU’s institutions and beyond. That enabled personnel at Scotland Europa to provide their client organisations with high-grade intelligence about future policies.42 Nevertheless it had no formal diplomatic status, it did not participate formally in the EU’s policy processes, and it did not provide separate representation for the Scottish Office in Brussels.43 It therefore supplemented existing inter-governmental channels, rather than replacing them altogether. More particularly, it represented the interests of its constituent members rather than those of Scotland per se, and as such, to begin with at least it was not ‘pro-active’ (Mitchell 1997: 418). Nor were its early years an easy passage. For instance, during the second half of the 1990s, it ‘lost’ some of its most ardent supporters. In 1996, the regional councils were abolished (as were the smaller district councils). From this point on there would be 32 unitary authorities. That had a number of ramifications for the Europeanisation of Scottish local government. There were grounds for supposing that the new bodies would lack the resources of the former regional councils, with the consequence that Scottish local authorities would lose their EU expertise. However, initially this was offset by the EU team at the Convention of Scottish Local Authorities (COSLA).44 A COSLA strategy

60 1973–1999: a Westminster by-pass? document suggested that its EU specialists should be increased from two to five. There were also expectations that COSLA would hold regular meetings with MEPs, Scottish ministers and members of the European Commission.45 Much of this came to pass in the short-to-medium term but it was little more than a holding operation until the Scottish parliament came into being in 1999. Arguably, therefore, the period from 1989 until 1996 was the high point of local authority Europeanisation. This was an era not only when a good number of the regional councils had their own well-staffed EU units (see table 5.1), but also when some were intent on formulating comprehensive EU strategies, which were somewhat distinct from UK government policy towards the EU. They participated in pan-EU networks such as the CPMR and AER, and their officials frequently visited Brussels where they lobbied members of the Commission and MEPs. Where possible they encouraged EU officials to visit their localities in an attempt to cultivate a closer relationship. As such this brief period was probably the nearest Scottish governmental bodies came to conducting their own para-diplomacy prior to the inception of Holyrood. Table 5.1 The Europeanisation of Regional Councils The years when ELOs, EU Units and Representation in Brussels first established Name

ELO

EU Unit

Representation in Brussels

Borders Central Dumfries and Galloway Fife Grampian Highlands and Islands Lothian Strathclyde Tayside

1989 1990 1976 1989 >1992 1975 >1986 1980 >1989

d

1990 1996 (SEO) 1976 1996 (SEO) SEC SEC 1996 (SEO) 1984 1996 (SEO)

Note: d: ELO: SEC: SED: SEO: >:

1993c d d 1992 d 1986 (1980)d >1989

Acronyms No EU unit at time of interview, EU functions decentralised across departments European Liaison Officer Scotland Europa, consultant Scotland Europa, dedicated member of staff Scotland Europa, office only until 1996 when ELO based there on behalf of ESEC unsure of date when first established but was evident in the year set out on the chart

Sources: Based on interviews with staff and documents from the Regional Councils

The testing of pragmatism As the EU and it policies affected Scotland increasingly, the pragmatic arrangement which underpinned inter-governmental relations between Scotland, the UK and the EU was put to the test. The net result was that the adequacy of Scottish

1973–1999: a Westminster by-pass? 61 representation in the EU was called into question across a swathe of sectors. For example, the financial sector lobbied the UK government in order that the European Central Bank’s HQ (or an offshoot) would be situated in Edinburgh. But apparently the UK Cabinet faced with pressure from the City of London vetoed it. A senior figure in the sector explained: With reference to the HQ, the UK was determined to push for London but there was little hope for success. Fierce competition from France and Germany who had been ‘better’ members of the EU thus vetoed the proposal. Scottish Financial Enterprise meanwhile was pushing for Scotland as a possible site for the ECB but could not bid without government support. The Government only pays attention to the Square Mile [i.e. the City of London] and the Secretary of State was like a broken reed on the issue. He said that he had to abide by Cabinet consensus.46 For its part, the energy sector in Aberdeen required EU funding for research and development but the UK government failed to provide the necessary additional monies, thereby affecting the industry’s chances of securing finance for research at a time when the oil sector was starting to winding down. An official at the Organisation for the Promotion of Energy Technology in Aberdeen recounted: In principle they [the Member States] can provide up to 9 per cent with 40 per cent coming from THERMIE and the rest from the contractors i.e. 51 per cent. But in the UK it is difficult to get this as the DTI agreed unilaterally not to top up the THERMIE programme. They decided to keep their money for R&D but the whole process is a four stage one.47 The Scottish fishing sector called for adequate money for decommissioning in the early 1990s, but for some while this was not forthcoming, and when it was available, the amounts were too modest. In practice the government preferred a tie-up scheme but that proved to be both unworkable and legally questionable. It was to have far-reaching consequences for stocks of fish and future viability of the industry (see chapter nine). The whisky sector endured successive hikes on duty in the UK until 1995. In so doing, the UK government undermined the SWA’s attempts to secure the harmonisation of duty on alcohol across the EU. This also had ramifications even further afield. A senior figure from the industry recounted: At present there are minimum rates, so the task of the Chancellor is to persuade his opposite numbers to reduce this rate. But he shot himself in the foot during the recent mini-budget when he raised the duty on spirits by 4 per cent, thus increasing the disparity between spirits, wine and beer, which makes it more difficult to make a case in Europe for harmonisation. The problem is that European law bases the variations on duty on the different categories of drink. We argue that duty should be based on the level of alcohol so that all alcoholic

62 1973–1999: a Westminster by-pass? drinks get the same treatment. If we are unable to achieve this in the EU, we will make little headway in Japan.48 Naturally, there were times when Scottish officials and ministers successfully fought their corner (see, for example, Bulmer et al. 2002). The resolution of the Danish by-catch dispute in the mid-1980s was one such high profile example and securing Objective 1 status for the Highlands and Islands was another. As Mitchell observed, it would be fallacious to think that Scotland was wholly ‘at the mercy of international influences’ in part because ‘international links have proved invaluable’ for the country in the past and also because at times ‘a distinct Scottish response had been possible’ (Mitchell 1997: 421). Moreover, it could reasonably be argued that the examples cited above, where Scottish actors failed to influence the outcome to their satisfaction, were relatively few in number and it would be unreasonable to conclude that Scottish influence in the EU was insufficient per se. However, at the very least these examples serve to underline that in relation to issues of strategic importance to Scotland, the representation of Scottish interests potentially lacked efficacy under the existing pragmatic arrangement. That is not to say that the bureaucratic mechanisms (i.e. civil service) interconnecting the Scottish Office with London departments were necessarily flawed, save for consultation problems and the perception by some Scottish interests of ‘out-ranking’ (see chapter two). For the most part they were not (for example, see Bulmer et al. 2002). But when strategically significant issues were at stake, all too often the key decisions were taken not by civil servants but by ministers of the UK government in London (an example being additionality – see previous chapter). This is where the root cause of Scotland’s dependency lay. The examples cited in this chapter and elsewhere of those instances when Scottish influence over EU matters was insufficient were indicative of a structural deficiency in intergovernmental relations between Edinburgh and London. In effect that deficiency was the product of the distribution of political authority within the UK (i.e., it was primarily situated in London), and how ministers in the UK government exercised that political authority. Thus, Scottish officials hoped in 1967 that there would be areas of policy where the Scottish Office would act as the lead department. But that was not to be (see chapter two). Faced with EU Funds being treated as a rebate to the UK Treasury, an official lobbied behind the scenes for a more effective arrangement during the early 1970s. That came to nought because ministers in the UK government thought otherwise. The BSE crisis in the mid-1990s was another example of this deficiency. Although a senior figure at the National Farmers Union Scotland (NFUS) once maintained that the NFUS possessed ‘adequate mechanisms of influence at present to reach the levers of power’,49 the BSE scare demonstrated that reaching for those levers was one thing, but applying them successfully was another. BSE affected livestock, with cattle most at risk. But, as a result of reports in the media during the 1990s, there had been a latent fear that it could spread to humans. This turned to public alarm in the spring of 1996 when the BSE unit in Edinburgh (the government’s own scientists) reported that it was unable to verify conclusively that there

1973–1999: a Westminster by-pass? 63 had not been a crossing over of the disease from animals to humans. That led eventually to the EU imposing a global ban on the export of British beef (and related products) which had an immediate impact on Scottish agriculture. It was then argued by some that Scottish beef producers relied on organic methods, as opposed to English farmers who used the artificial feeds that were thought to have spread the disease. This encouraged two SNP MEPs from the north of Scotland to make their own overtures to the European Commission in order to get the ban lifted. Although they were treated with sympathy, their requests were politely refused because such an application could only come from the UK government. The government took the view that the ban itself was unfair and that if it lobbied for it to be lifted in one part of the country, then that would be tantamount to recognising its legitimacy elsewhere. Officials at the Scottish Office were also quick to point out that Scotland itself had suffered from BSE, so its farmers did not deserve special treatment. Much to the farmers’ dismay, the ban stood.50 The BSE crisis raised a number of issues for the NFUS. In the first place, it demonstrated that there were limits to its influence within the EU, even when its members’ jobs were in peril. Whilst the NFUS may have had high level contacts in the Scottish Office, when the Council of the EU met there was little that Scottish ministers could do because they did not have the right to vote purely on behalf of Scotland. Instead the NFUS had to rely on the Secretary of State to advance their case in the UK Cabinet. If the Cabinet was unwilling to give Scotland’s farmers preferential treatment during its deliberations over the EU’s ban there was nothing that the Secretary of State could do about it, other than resign – which he did not do. Instead Mr Forsyth (then the incumbent) blamed the other Member States and admitted that he was politically impotent. When asked when the ban would be lifted, he commented in a BBC TV interview: ‘I’m not in a position to confirm when it will happen, because it’s not down to me. It will be decided by politicians in Germany, in France, in Spain and elsewhere, and I am not in a position to direct them.’51 He did decree, apparently, that the European flag should not be flown on government buildings in Scotland on ‘Europe day’ during 1996. As the crisis deepened, a gulf emerged between the NFUS and the government as to how the ban could best be lifted. The latter opted for a policy of noncooperation with the EU in the hope that this would induce it to shift its position. But the NFUS preferred a more conciliatory approach, which was designed to garner support from those states that were more amenable to the UK’s position.52 The BSE debacle demonstrated just how little power Scottish interests could have when the government acted on their behalf in the EU. In part this could be attributed to the latter’s lack of allies amongst the other Member States. It also served to expose how UK ministers could discount Scottish views altogether. Arguably the government’s policy of non-cooperation was directed more towards placating the Euro-sceptics from within its own ranks, than defending the interests of Scottish farmers (John Major’s minority administration was at the time beset by factional infighting over the EU). All in all, therefore, under the existing pragmatic arrangement, Scottish influence was open to question, as far as the EU was concerned. If Scottish civil servants

64 1973–1999: a Westminster by-pass? failed to influence their colleagues in London over a key EU policy, then they could bring it to the attention of their minister. The latter could then write to the relevant UK minister or if necessary he or she might choose to have a quiet chat about it ‘behind the speaker’s chair’ at Westminster. If that too failed to yield the desired result, then the matter could be brought before the Secretary of State. However, there were limits as to when such a course of action could produce the desired outcome (e.g. the NFUS and the BSE ban). More particularly, there appeared to be an absence of political leadership at St Andrew’s House in relation to EU matters (though historians might subsequently arrive at a different picture when official records are available). That is not to say that ministers did not have EU responsibilities. They did. For a while during the 1990s Lord Fraser of Carmyllie held the portfolio for Scotland’s relations with the EU but the results were intangible. Others, such as Sir Hector Monro were responsible for fisheries and thus on occasion attended the Council as part of the UK delegation. But underlying this was a lack of strategic vision as to how best Scotland should conduct its relations with the EU, other than Ian Lang’s call for a multi-pronged approach.53 Accordingly, it could be supposed that if the channels provided by the Scottish Office were ineffective at times, then Scottish interests might have been tempted to circumvent the UK government entirely where possible and deal with Brussels directly, the end result of which would be the so-called ‘Westminster by-pass’.

A Westminster by-pass? By the mid-1990s a good number of Scottish actors had developed direct links with the EU and its institutions. This particularly applied to governmental bodies, which is understandable. First, they were most likely to be affected by the EU, as decisions that affected their work were taken increasingly not in London but in Brussels. Second, in the main they possessed sufficient resources to despatch their personnel to Brussels for meetings or to secure EU secondments for individual staff. The picture was more diffuse for non-governmental actors. Some, such as the NFUS, the Scottish Fishermen’s Federation, the Scotch Whisky Association, were frequent visitors to Brussels, and individuals from these organisations were often as not members of one of the Commission’s advisory committees. Other interest groups were represented by their parent bodes, as was the case with WWF Scotland or CBI Scotland. In some instances the opportunity to deal direct with the EU was constrained by their lack of resources – that applied to the Scottish Crofters Union, for example. But even here, its membership of a pan-EU umbrella group ensured that there was a measure of assistance towards its travel costs. Nevertheless, it did not necessarily follow that when interest groups lobbied Brussels, they could afford to ignore the UK government completely – in effect there was for the most part no such thing as a Westminster by-pass. Once EU legislative proposals were in the pipeline Scottish pressure groups ensured that UK officials were briefed in good time. A senior figure in the whisky industry observed:

1973–1999: a Westminster by-pass? 65 When dealing with the EC the most critical thing is to make sure that the government is up to date on a specific draft regulation or directive. You can inject that in various levels but the decision-making level in our civil service is Assistant Secretary and upwards. We therefore had to devote effort to Principal and Assistant Secretaries and upwards. If we faced a major issue we had to secure a meeting with a Permanent Secretary or the Secretary of State. But the benefits of meeting ministers and MPs is limited, unless officials at all levels are totally aware of your case and that when they do meet you they [the minister] are already working to a well-informed brief [from their officials] recommending a particular course of action.54 Hence, if interests could win the support of more junior officials who were responsible for briefing their seniors, that prepared the ground for meetings with the Permanent Secretary or a minister. As the lobbyist subsequently observed, interests had to adopt a multi-track strategy. They should be aware that policy development was markedly different in Brussels but they must never overlook central government in the UK. When you go to the EC you must identify the directorate responsible and the cells within the Directorate General that deal with your sector. Unlike the UK where power stems from a minister, within the EC it can emerge from the lowest level. Therefore you must go in at the soft pencil stage and you must get your own government on side.55 Essentially, legislative proposals could emerge from the most junior officials. Yet, depending on a proposal’s legal base, it might be little use in securing allies in the Commission, if the UK government was opposed to the whole idea. It was therefore worthwhile to sound out civil servants (and UKRep) on the proposal as early as possible, since they were likely to play a key role later on in the Council and also when the policy was implemented in the UK. Besides, if UK officials perceived that an interest group had chosen to ignore them one minute and then asked for help sometime later, they might be less amenable in a crisis. Yet, when things did go wrong, as the farmers discovered over BSE, Scottish ministers were largely relegated to ‘bargain hunters’. Primarily that occurred within the UK political arena, not the EU. For the most part, when they wished to influence the UK line on a particular EU policy, Scottish interest groups were expected to do so through the Scottish Office.56 The latter usually consulted those interests who stood to be directly affected by the proposal emanating from the Commission. But at the end of the day interest groups were reliant on influencing the outcome through the rationality of their case and the exercise of pressure (i.e. lobbying). Unsurprisingly, given its status as a territorial branch of the UK government, the Scottish Office lacked more formal (i.e. constitutionally entrenched) mechanisms, which would have enabled it to exercise substantive control over the formulation of the UK line on EU policy. That rather stood in contrast to the situation in Germany, for example. Unlike the German Länder, Scotland did not possess the

66 1973–1999: a Westminster by-pass? right of veto over the UK signing up to further transfers of competence to the EU. Hence, as far as the EU was concerned, in the years prior to 1999, Scotland was politically dependent on the centre because this was where for the most part political authority resided in the UK. There may have been administrative devolution regarding those domestic matters which fell within the competence of the Scottish Office but that was of little consequence concerning European affairs. Even though some EU-related work was transferred from London to Edinburgh during the late 1980s and early 1990s, for the most part this was little more than decentralisation. In sum, therefore, during the 1990s the pragmatic arrangement governing Scotland’s relations with the EU had been tested and to some extent found wanting. This, however, was but one facet of a Union that was no longer sustainable under the existing constitutional arrangements. Even so, the BSE crisis was something of a milestone for Scottish–UK relations. The decision to ban the export of beef was taken not by UK ministers in London but by ministers from the other Member States in EU. They were entitled to do so because QMV applied in this instance in the Council. As a consequence this policy was ‘imposed’ on Scotland (and the rest of the UK for that matter), regardless of the views of UK ministers. This was by no means a new scenario, as Scottish fishermen had discovered some time earlier. But as far as the CFP was concerned, usually the outcome was based on a compromise of sorts, and at times the UK veto applied in relation to key issues. BSE was another matter entirely because of its high public profile and the absence of compromise. In so doing, and just a couple of years before the Scots secured their own parliament again, it brought to the fore the growing ambiguity over who exactly governed Scotland.

6

1999 Business as usual?

I strongly believe that we have got to get Scotland the best possible deal out of Europe. Although I accept that there are other legitimate arguments about how we do that, I submit – with overwhelming evidence in my support – that the best way is to remain within the UK and, as the documents on the concordats made clear, to be fully and directly involved in every way possible in the formulation of UK policy to ensure that that policy is tailored where necessary to Scotland’s interests. We shall then be able to push and achieve advances and we intend to continue to do so. (Donald Dewar 1999)1

Two words sum up the events of 1999 – change and continuity. Scotland now had its own parliament but under the Scotland Act (1998) formally ‘sovereignty’ continued to reside at Westminster. Scottish civil servants performed much the same work as before (albeit that their workload had increased due to devolution), but they could work for one of two territorial branches of government. The Scottish Office ceased to exist and was replaced by the Scottish Executive and by the Scotland Office (recently subsumed within the Department for Constitutional Affairs). The country would now have its own First Minister at the head of the Scottish Executive. However, the office of Secretary of State was retained, the post-holder heading the Scotland Office.2 The latter handled those Scottish matters which were reserved to Westminster, including in theory foreign affairs.3 The Secretary of State retained a seat in the UK Cabinet and participated in its committees including the sub-committee on European issues (Bulmer et al. 2002: 21). The Secretary of State also acted as the ‘custodian’ of the Scotland Act, the intention being that Holyrood should not exceed its powers. As foreign affairs was reserved to Westminster, it could be supposed that the Scotland Office would be the key player regarding the conduct of Scotland’s relations with the EU. However, because so many of the EU’s policies impacted directly on devolved matters, it was tacitly acknowledged in the immediate period leading up to 1999 that in practice the Scottish Executive would be extensively involved in EU affairs. For its part, the parliament would have the authority to scrutinise proposed legislation emanating from the EU. The Consultative Steering Group, the body responsible for drawing up the parliament’s procedures,

68 1999: business as usual? recommended that it should have its own European Committee. That duly came to pass (it was subsequently re-named the European and External Relations Committee). The other substantive change was that a handful of Scottish civil servants would be based in Brussels at Scotland House. This would not replace Scotland Europa, which continued to exist, though each would be based in the same premises. With a plethora of new governmental bodies in situ, and the establishment of the Executive’s office in Brussels, surely Scotland’s influence over foreign affairs could only but improve. Yet it was far from clear that the new arrangement would be the panacea that some hoped, not least because devolution threw up more ambiguities than certainties. As Salmon rightly observed, reserving foreign affairs to Westminster was little more than an ‘oxymoron’4 – this was especially so in relation to the EU. On the one hand, amongst other things, devolution was intended to provide Scotland with greater self-government. On the other, Scotland already belonged to another union, the EU (albeit as a territorial component of the UK), a union which over time had increasingly called into question the autonomy that Scotland possessed. This conundrum had been apparent during the early 1990s when the Scottish Constitutional Convention had been established. Amongst its tasks the Convention would prepare the ground for, and act as a driver for, constitutional reform. The EU naturally figured in its deliberations but, as Taylor observed, there was a shift in ‘emphasis’ regarding its position on Scottish representation in the EU. In its 1990 document there was the demand that ‘there should be a statutory entitlement for Scotland’s parliament and/or Executive to be represented in UK ministerial delegations to the Council’.5 But its 1995 paper had watered this down somewhat. It stated that ‘Scotland’s parliament will be represented in UK Ministerial delegations to the Council where appropriate, and Scottish Ministers will lead these UK delegations when the areas under discussion are of specific relevance to Scotland’ (Taylor 2002: 270–271). The idea that Scottish ministers would have some involvement in European affairs set the tone for the 1997 White Paper (outlining the government’s proposals for a Scottish parliament). That was published in the autumn of 1997 in the immediate aftermath of Labour’s election victory and an entire chapter was devoted to the EU. Although foreign affairs was to be ‘reserved’ to Westminster (i.e. it retained competence), the White Paper proclaimed that Scottish ministers would have ‘an important role to play’ and for its part so would the nascent Scottish parliament.6 However, the following year there was little mention of foreign affairs in the Scotland Act; primarily this related to its reserved status and the implementation of EU and international laws by the Scottish Executive. Nor would there be some form of ‘statutory entitlement’ regarding Scottish representation in the Council as the Scottish Constitutional Convention had originally hoped. Rather, for the most part, the UK government would continue to remain pivotal to Scotland’s relations with the EU. As Donald Dewar, Scotland’s initial First Minister, surmised within a few months of the parliament’s re-establishment, Scotland had to ‘get the best possible deal out of Europe’. But he believed that this could be attained most propitiously through its ‘involvement at all levels in the formulation of UK policy’.

1999: business as usual? 69 So, did it follow that this amounted to little more than ‘business as usual’ as far as inter-governmental relations between Scotland and the UK/EU were concerned (i.e. little if any substantive change)? Or would there be something of a halfway house (i.e. limited structural and procedural changes)? The White Paper struck an optimistic note when it stated that: The UK Government wishes to involve the Scottish Executive as directly and fully as possible in the Government’s decision making on EU matters. It is part of the Government’s intention that Scottish Executive Ministers and officials should be fully involved in discussions within the UK Government about the formulation of the UK’s policy position on all issues which touch on devolved matters.7 But it added: The emphasis in negotiations has to be on working as a UK team; and the UK lead Minister will retain overall responsibility for the negotiations and determine how best each member of the team can contribute to securing the agreed policy position, so that in appropriate cases, Scottish Executive Ministers could speak for the UK in Councils.8 This raised the question as to whether the ad hoc arrangements which pre-dated 1999, would be up-graded and if so whether it would engender a greater degree of ‘formalisation’ than was the case before. Hitherto, inter-governmental relations between Scotland and the EU had evolved over time and they were based on custom and precedence. They were inherently pragmatic, as the authors of the 1975 White Paper on devolution had originally envisaged. If they were to be formalised, that had a functional logic to it inasmuch as civil servants in London and in Edinburgh would be reporting to different political administrations. The political administrations in London and Edinburgh were of the same political hue prior to 1999 because Scottish ministers were UK government ministers who had been appointed by the Prime Minister in London. Now that was not to be. Scottish ministers would be drawn from the ranks of MSPs at the Scottish parliament. The First Minister was to be elected by MSPs and that individual would then be responsible for forming his or her ministerial team, which in turn, would collectively act as the political leadership of the Scottish Executive. Sooner or later, therefore, completely different parties would form the governments in London and in Edinburgh. So, officials risked finding themselves in something of an invidious position as ultimately they all belonged to the same ‘British’ civil service. Allied to which was the concern that where possible devolution should not result in running conflicts between the UK and territorial tiers of government. From a civil service point of view this would have been abhorrent, as it did not make for efficient and effective government. Blair’s government, the author of devolution, had its own concern. The underlying intention was that constitutional change should strengthen rather than undo

70 1999: business as usual? the bonds which held the UK together. But some senior figures in ‘London Labour’ were concerned that devolution could lead to the ‘Balkanisation of Britain’ (Taylor 1999: 149). More particularly, one of the consequences of constitutional change was that there would no longer be a single ministerial body bound by collective responsibility. Yet ministers from the devolved administrations expected to have a close involvement in the UK’s handling of EU affairs (Bulmer et al. 2002). All in all, it therefore made sense if at the very least something was written down (i.e. ‘codified’) to guide how inter-governmental affairs in the UK should be conducted from henceforth. Equally, there needed to be some kind of inter-ministerial forum, which would enable ministers from the different tiers of government to consult with each other, and, where possible, to collaborate in areas of common interest. Potentially this same forum could provide a facility for conflict resolution between the different administrations. But if these various mechanisms were to have a legal status of some kind that risked undermining the pragmatism that had been the hallmark of the UK constitution and the Westminster system of government. Thus, whilst ensuring that it had no formal legal status as such, there needed to be some form of declaration by the constituent administrations which incorporated in principle their commitment to collaboration – the origins of which can be traced to the White Paper itself. The net result was a ‘Memorandum of Understanding’, which in turn engendered a ‘Joint Ministerial Committee’ (in practice there were a number) and the concordats.

A ‘new’ pragmatism? The Memorandum of Understanding (MoU) was referred to as ‘the principal agreement’ between the UK government and the devolved administrations. As such it framed the principles which would apply to inter-governmental relations between the two tiers of government. These related to ‘communication and consultation, co-operation, exchange of information, statistics and research, confidentiality, correspondence, parliamentary business, international and EU relations, nondevolved matters, the Joint Ministerial Committee, implementation of devolution business, reviewing bilateral relations and the need to review the MoU itself’. As far as communication was concerned, the intention was not to ‘constrain the discretion of any administration’, but to ensure all sides were adequately consulted in good time. This was because of the concern that one administration should not be wrong-footed by another due to it being ill informed about a given issue. A key element, therefore, was the need for confidentiality. The MoU listed a number of instances where this could apply including ‘when the provider of information deemed it necessary’. For those unwise enough to consider breaching confidentiality, there was the explicit warning: ‘each administration can only expect to receive information, if it treats such information with appropriate discretion’. Yet an explanatory note affirmed that the MoU and supplementary agreements ‘were not legally binding’.9 It was under the aegis of the MoU that the Joint Ministerial Committee (JMC) was established. The MoU stated:

1999: business as usual? 71 The UK Government and the devolved administrations believe that most contact between them should be carried out on a bilateral or multi-lateral basis, between departments which deal on a day-to-day basis with the issues at stake. Nonetheless, some central co-ordination of the overall relationship is needed. Therefore the administrations agree to participate in a Joint Ministerial Committee (JMC) consisting of Ministers of the UK Government, Scottish Ministers, Members of the Cabinet of the National Assembly for Wales [and Ministers of the Northern Ireland Executive Committee].10 Its terms of reference were: a. b.

c. d.

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 different parts of the United Kingdom; To keep the arrangements for liaison between the UK Government and the devolved administration under review; and To consider disputes between the administrations.11

The most significant aspect of the JMC was that it possessed the potential to resolve a dispute if this could not be dealt with bilaterally between the administrations concerned. In the first instance disputes should be dealt with by the appropriate Secretaries of State and if that failed to bear fruit, then a dispute could be addressed by the JMC secretariat. Aside from a plenary JMC which would meet once a year, chaired by the Prime Minister (or his/her representative), it could also convene in other functional formats including the EU (e.g. JMC Europe). The ‘Agreement on the Joint Ministerial Committee’ made particular reference to JMC Europe, chaired by the Foreign Secretary. It stated that it would: Also operate as one of the principal mechanisms for consultation on UK positions on EU issues which affect devolved matters. The fact that rapid decisions have to be taken on EU issues to meet the timetable of negotiations in the Council of Ministers, as well as the Government’s own wish to involve the devolved administrations as fully as possible in discussions on the formulation of UK policy positions, necessitates a mechanism which enables the lead UK minister to consult other UK Government Ministers and their counterparts in devolved administrations simultaneously. In this functional format, it is likely that the majority of business will be conducted through correspondence, although meetings will also be convened where necessary.12 In essence, this meant that for routine matters contact between departments and administrations would be outside JMC Europe because of the speed of events, whereas this JMC would be of more value prior to EU summits, for example.

72 1999: business as usual? However, JMC Europe along with its counterparts only possessed ‘consultative status’. The supplementary agreement explained: The JMC is a consultative body rather than an executive body, and so will reach agreements rather than decisions. It may not bind any of the participating administrations, which will be free to determine their own policies while taking account of JMC discussions. Nonetheless, the expectation is that participating administrations will support positions that the JMC has agreed.13 Hence, as with the MoU, the JMC was rather an ephemeral entity, so far as its status was concerned, and this was indicative of the pragmatism which continued to underpin the ‘new’ constitutional framework. The MoU also set the scene for the four ‘overarching’ concordats which were designed to ‘apply broadly uniform arrangements across government’, some of which were reserved to Westminster, and some of which fell under the ‘responsibilities of the devolved administrations’. They aimed to resolve two conundrums in the aftermath of devolution (Scott, cited in Bulmer et al. 2002). This related firstly to ‘concurrent powers’, whereby: The UK Government and the devolved administration effectively share competence with respect to a particular policy area and, as a result, must find a common position if jurisdictional (and political) conflicts are to be avoided. And, secondly, ‘policy contagion’, whereby: Policy decisions taken by one administration have an effect on the policy options facing another administration – for instance where one administration finds itself under political pressure to conform to policies adopted by another administration.14 This was particularly germane to European affairs because of the overlap of competencies. For instance, the CFP is determined at the European tier of government, but ministers from the UK government not only take the lead on behalf of the UK in the Council, they are also responsible for overseeing the implementation of CFP policy in non-devolved parts of the UK. The Scottish Executive is also involved in the CFP, as fisheries is a devolved matter and it too has responsibilities regarding implementation. Hence the concordats are of particular relevance to Scotland’s relations with the EU. One of the concordats related to ‘the co-ordination of European Union Policy’ another to ‘international relations’. As far as the former was concerned, it restated the commitment to ‘involve the Scottish Executive as fully and directly as possible in decision-making on EU matters’. It also stated that arrangements governing ‘consultation and the exchange of information’ would continue as they did prior to devolution. But it added that ‘participation would be subject to mutual respect for the confidentiality of discussions and adherence by the Scottish Executive to

1999: business as usual? 73 the resulting UK line, without which it would be impossible to maintain such a close working relationship’. In effect this was something of a warning. If the Scottish Executive (or the other devolved administrations) failed to play by the rules concerning confidentiality then it had to face the consequences – the implication being that it would lose access to the inner workings of the UK government on EU affairs. The concordat also stated that: Decisions on Ministerial attendance at Council meetings will be taken on a case-by-case basis by the lead UK Minister. In reaching decisions on the composition of the UK team, the lead Minister 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.15 And: Attendance by officials of the devolved administrations at EU meetings will continue, as at present, to be agreed bilaterally with the lead Whitehall Department. Such agreement would also cover attendance at Presidency and Commission chaired meetings, including those discussing implementation matters. The role of 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.16 Effectively this was little more than a re-iteration of the arrangements which pre-dated devolution, save for the fact that, formally, they were now set out in writing. However, although the Scottish Executive was involved in the inception of the concordats and it proposed alternations, due to the absence of transparency it is difficult to determine how far it was an equal partner during their formulation (Lynch 2001: 151). In turn this raises the question as to what would occur if a separatist party (or coalition) secured power in Edinburgh one day. It would certainly seem that these arrangements are not legally binding as such (Bulmer et al. 2002: 38), and the JMC lacks executive power – it ‘merely’ possesses consultative status. Yet latently and in places overtly, the implication is that the devolved administrations are expected to toe the UK line, albeit after they have offered their own input to the formulation of UK policy. If they fail to do so, or worse still they breach confidentiality, then they would suffer the consequences. Yet the status of the concordats themselves is rather ambiguous. Winetrobe (1999) highlighted a number of instances where they might be of legal significance. One such example was a response to a question from Jim Wallace during a debate at Westminster as to whether they might be subject to a judicial review. Henry McLeish replied: The Hon Gentleman asks a good question. The concordats are not intended to be legally binding contracts or to substitute for matters properly covered by

74 1999: business as usual? 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 legally challenged on the ground that the concordat had created a legitimate expectation that the procedure would be followed.17 Lord Falconer of Thorton (then the Solicitor General) ploughed a similar furrow when the Government of Wales Bill underwent its second reading in the House of Lords. He explained: 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 there will be no legal underpinning of these concordats. The precise limits of that underpinning would have to be worked out by the courts in the context of the terms of the concordat itself. But the important point about judicial review is that it will not permit one party suddenly to whip away the concordat and then act entirely contrary to its terms.18 However, Winetrobe believed that any such claimant faced ‘a number of hurdles in pursuit of a claim based on legitimate expectations’ (especially in Scotland) because the ‘parties themselves had expressly accepted that the documents were not legally enforceable’ (ibid.: 13). Equally, as Rawlings (cited in Winetrobe) claimed: ‘The concordats are a fine example of the reworking of the informal character of the British constitution. But [. . .] soft law usage of this kind demands firmer underpinning in a changed constitutional landscape.’19 Yet, as Bulmer et al. rightly observed, to all intents and purposes the concordats did actually ‘underpin the new constitutional situation in which there are two tiers of UK governance’ (Bulmer et al. 2002: 38). Criticism of the current arrangement has been wide-ranging. There is no Scottish parliamentary committee with responsibility for overseeing inter-governmental relations or the concordats (Lynch 2001: 156).20 Moreover, there was no UK parliamentary oversight of the original drafting process (ibid.: 150). That though did not deter MPs at Westminster from airing their concerns. In its report on multi-layer democracy, the Scottish Affairs Committee warned: We were frequently told that there would be constant consultation and discussion between Scottish and UK ministers and officials, but there is no provision for an open forum at parliamentary level for the public discussion of matters of common concern. Even the announcement by Baroness Ramsay on 28th July of Joint Ministerial arrangements [. . .] does not go very far to remedy this deficiency.

1999: business as usual? 75 There is considerable and legitimate potential scope for disagreement between state and sub-state (and even between sub-states) even where both administrations are of the same political complexion, but any disagreements will be exacerbated when they are not. And inevitably, even if the political control in the UK and Scotland start the same there will come a time when they differ: the staggering of elections, the proportional representation systems for electing the devolved assemblies which will favour the creation of coalition administrations and the possibility of people voting differently in regional and national elections all tend towards such an outcome. This makes the possibility of reaching common ground for a delegation to Brussels, agreement on a disputed point of vires or even on a matter of honest political disagreement, more difficult to achieve.21 There was also the possibility that the current arrangements could even result in re-centralisation. With the caveat that it was too early to arrive at any definitive judgement, Burrows suggested: Under these circumstances there is always a possibility of competence creep where central government can use its powers in relation to European matters as a means of imposing a centrally determined policy on the devolved administrations. The intra-governmental mechanisms in themselves provide little reassurance against this possible encroachment on the powers of the devolved administrations. For these reasons the acceptance or adoption of a principle of subsidiarity or some other form of constitutional committee is needed to secure the devolution settlement. Otherwise intra-governmental mechanisms for policy co-ordination could become the back door to recentralisation. (Burrows 2000: 141) Others have warned that far from presaging an era of stability, the new governmental arrangements were a ‘recipe for independence’ because from the Scottish people’s perspective this was not the ‘best way of binding Scotland to the UK’. Kellas observed: Lawyers are everywhere in the new Scottish political system, and a new ‘Dundas Despotism’ is on the way, albeit mostly for Scotland’s own political system, not often as a feed-in to the House of Commons. That is because the Scotland Act puts the Scottish Parliament and Executive under judicial control, unlike the ‘sovereign’ U.K. Parliament and Government. Not only can judges rule Acts of the Scottish Parliament and decisions of the Scottish Executive ultra vires, but even the procedures of the Parliament have come before the Court of Session on two occasions. A U.K. Court, the Judicial Committee of the Privy Council,22 is the final court in ‘devolution cases’, and in time no doubt a legal canon will develop comparable to that of the Supreme Court

76 1999: business as usual? of the United States in federal–state relationships but with the important difference that no Court can overrule the British Parliament and Government. (Kellas 2000: 30) In sum, there are grounds for supposing that the new constitutional arrangements could well be improved upon. They are biased in favour of the UK government (which is unsurprising as devolution was itself the product of an Act of the Westminster parliament). There is too little parliamentary oversight, in Scotland at least. There is too much secrecy and there is no assurance that conflicts would be resolved to the satisfaction of the devolved administrations. Even so, there were high expectations for the new pragmatic arrangements. In the immediate aftermath of the formation of the Holyrood parliament, officials in London and Edinburgh believed that times had changed for the better. A civil servant at the Foreign and Commonwealth Office (FCO) commented: We have opened up the consultative process and we must take the views of the devolved administrations into account. We ignore them at our peril. It would be foolish for the government to set up these bodies and then not take their views into account when formulating policy. We must now make sure that Scotland is no longer forgotten – this used to happen in the past and it is one reason why the FCO and other Whitehall departments have set up Devolved Administration Departments.23 Scottish officials too were optimistic. One individual who was responsible for work on the concordats observed: If there was a faction in Scotland which had a different agenda concerning an EU issue, and where the voting in the Council was to be fairly close, the Commission would love to undermine the UK position by pointing to the public position of a part of the UK. So it is in the UK’s interest to take into account the Scottish position and it is therefore essential for Scottish factors to be taken into account. There are times in the EU where from a UK perspective there is no immediate interest, so you have to recognise that in such cases the Scottish voice would be absent.24 However, he believed that the concordats were not set in stone: I have no doubts that some people in London believed that the concordats were intended to ensure that the Scottish and UK Governments were singing from the same hymn sheets but what would happen for instance if there was an SNP Government in Scotland? It would be geared towards independence and it would have an electoral mandate, so the concordats are not binding. In terms of drafting I did not want to cut across the Scotland Act but equally I was not looking into the future when there might be a new Government in situ.25

1999: business as usual? 77 Revealingly both interviewees believed that MSPs’ involvement in foreign affairs would be circumscribed by their need to focus on domestic matters, if they wished to be re-elected. That apart, it was also apparent that they shared the belief that Scotland would not be ‘forgotten’ again and that London could not afford to ignore Scottish interests. In their oral evidence to the House of Lords Select Committee on the Constitution, senior figures from the Cabinet Office, including Sir Stephen Wall, the head of the European Secretariat, were upbeat in their assessment of how relations had progressed between UK departments and the devolved administrations. He admitted that: Conflict is necessarily built into the system as a test of whether it is working. It is in part, a product of a real determination on the part of the Government and on the part of Civil Servants to make it work. That is perhaps a habit of government in Britain and I personally think it is a good one.26 But equally it was essential that there should be a single UK line at the end of the day. He explained: My competence is limited to trying to ensure that as regards the formulation of EU policy we succeed in arriving at a UK policy because at the end of the day we have a single UK negotiating position which has to take account of the constitutional position that we have.27 He was then asked whether there had been a ‘basic change’ in the way in which the UK had dealt with the aggregation of territorial interests when formulating its EU policy. It perhaps under-estimates what from my perception [. . .] is a greater degree of intensity in those relationships and I think it under-estimates the extent to which politicians of the devolved administrations not only have a right to be consulted but an expectation to be consulted. Although the JMC Europe has so far met only three times, my sense from the last two meetings in which I have participated is that it is a body whose significance is valued and which will probably meet more frequently in the future.28 He later admitted, however, that to-date there had not been issues before the JMC that required resolution.29 So, the underlying impression is of a sound working relationship between the various tiers of government with all sides intent on ensuring a high degree of collaboration. Territorial needs would be taken into account but at the end of the day ministers and/or their officials needed to arrive at a common UK position. Thus it would appear that inter-governmental relations could hardly be bettered. However, a key issue was whether the ‘new’ arrangements would engender any more influence for the territories over the UK’s formulation of EU policy, than had

78 1999: business as usual? been the case prior to 1999. According to Bulmer et al. this had not been the primary intention. It was not [emphasis in original] intended that the territorial input to UK European policy either should be enhanced or given greater political clout as a consequence of devolution. Instead, the objective was to reconcile current good practices of UK policy-making with the transfer of competencies and political ‘authority’ that attended devolution. (Bulmer et al. 2002: 66) Nevertheless, the devolved administrations would be one step removed from ‘core processes’ (e.g. representation on UK Cabinet committees on the EU)30 but at the same time they needed to ‘retain an involvement in European policy pathways’ in the UK (ibid.: 66–67). From a civil service perspective, the arrangements concerning territorial–UK–EU relations had worked well hitherto.31 As far as bureaucratic procedures were concerned, little substantive change was necessary, other than ‘codifying’ them and establishing various inter-governmental mechanisms such as the concordats and the JMC to counter-balance the devolved administrations’ semi-detachment from key policy-making fora within UK government. But somewhat paradoxically, in the aftermath of devolution, Scotland could be worse off not better. In terms of power relations, the new arrangements could exacerbate Scotland’s political dependency. For example, were different parties to be in office in London and Edinburgh would it be of much consequence concerning EU relations? Here Bulmer et al.’s position is of particular salience. Firstly, they acknowledged that ‘the UK’s political authority over the EU remained intact’ and that the devolved administrations would be concerned primarily with ‘policy’ or matters relevant to their ‘territorial expertise’. Second, they observed that the onus lay with the devolved administrations to respect the ‘rules of the game’: If the devolved administrations seek to ensure that ‘legitimate’ territorial interests are reflected in UK policy, then they have to abide by the agreed rules of inter-administration policy co-operation and co-ordination, including being ‘bound’ to adhere to the agreed negotiating line. Should they breach these rules – for example, to exploit opportunistically a short-term domestic political advantage – they might find themselves being excluded from the policy process as consequence. (Bulmer et al. 2002: 65) However, there was also the caveat that it was much too early to arrive at a definitive judgement. This was primarily because the political complexions of the various tiers of government ensured that there was ‘a broadly harmonious UK-wide political environment’ (ibid.: 69). It therefore comes as little surprise that goodwill and informality provide much of the latticework in support of the current arrangements. This is not necessarily for the best. A House of Lord’s report on inter-institutional relations observed:

1999: business as usual? 79 A large amount of contact takes place between the four administrations, frequently and at variety of levels. Many devolved administration Ministers have a high level of contact with their counterparts at Whitehall. Officials, whether senior or junior, also have a high level of contact with their counterparts. These contacts are highly informal. They often take place by telephone or e-mail. Many of the meetings in person are quick words when people meet socially or for other purposes. Consequently it is impossible to keep records of them. Formal, minuted meetings – especially of representatives of all four governments – are a rarity. The justification for this informality is the fundamental goodwill of each administration toward the others. The bulk of the informal contacts tend to be bilateral, between the UK Government and one devolved administration. This appears to be where the bulk of working level matters are dealt with – they are not referred to the JMC or discussed in other settings with the other devolved administrations.32 The committee then made the following points: We have noted the heavy reliance on goodwill in inter-governmental relations. Many of our witnesses emphasised the need for goodwill to make relations work, and attributed their smoothness to date to the existence of such goodwill. The view that came across was that such goodwill permitted the high level of informality that presently exists, and meant that the need to have more formal procedures, or use those that already exist, was reduced.33 And: We would certainly not seek to recommend the absence of goodwill as an element of inter-governmental relations [. . .] We are also concerned that goodwill appears to have been elevated into a principle of inter-governmental relations: it is used to explain the avoidance of disputes and to justify maintaining the present informality of the system. Some also argue that it works against the pluralist concept of devolution in that informality helps perpetuate previous practices.34 It therefore recommended ‘the use of formal mechanisms’: We recommend that further use should be made of the formal mechanisms for inter-governmental relations, even if they seem to many of those presently involved to be excessive. Formal mechanisms, such as the Joint Ministerial Committee (JMC), are not intended to serve as a substitute for good relations in other respects, or for good and frequent informal contacts, but rather to serve as a framework for such relations and to act as a fall-back in case informal personal relations cease to be sufficient. Such mechanisms are likely to become increasingly important when governments of different political persuasions have to deal with each other.35

80 1999: business as usual? The significance of this for Scotland is potentially far-reaching. Firstly, the current inter-governmental arrangement is little more than ‘ad hoc’36 – it is debatable whether it could work successfully if a territorial administration’s position deviated ‘materially’ from that of the UK government in relation to a ‘UK-level policy’ (Trench 2003: 164–165). Second, a high degree of informal contact could result in confusion and misunderstandings between Scottish and UK administrations over a particular policy, especially if there was an absence of minuted material which could provide a record of what had been agreed. Thirdly, a reliance on informal contacts could mean that inadvertently there might be times when UK ministers and their officials failed to consult their colleagues in Scotland adequately about a particular development. Likewise it could enable some departments to choose not to consult the devolved administrations at all, if they so wished, especially where reserved matters were concerned. For example, Bulmer et al. observed: Some Whitehall departments appear to regard the ‘reserved’ status of UK European policy as meaning that they have no requirement to involve the devolved administrations in the policy process – merely to inform them of decisions reached and expect their support for these decisions. Clearly this is not how the devolved administrations see matters.37 Lastly, there is the issue of transparency. The JMC and the concordats are all bound by the need for confidentiality but the absence of transparency risks fermenting discontent in Scotland whenever stories surface in the media that the Scottish Executive has been outflanked by, or hard done by, its counterpart in London. This was a source of tension that devolution was supposed to ameliorate.

The restoration of a dual polity? As has been suggested in previous chapters, there were a number of occasions prior to 1999 when Scottish influence over EU matters was questionable. This was so in relation to BSE, the duty on whisky, the oil sector and the financial sector. Then there was the issue of additionality concerning the structural Funds, which was never resolved satisfactorily even by the early 1990s – and which Holyrood’s European and Finance committees continue to have doubts about. Those Scottish records that are available to public scrutiny reveal that there were strongly held concerns within the Scottish Office about both additionality and Scottish departments being little more than ‘an appendage’ of ministries in London, where EU relations were concerned. As will be discussed in the chapter on fisheries there were times when the outcome was a success but on other occasions the reverse applied, especially during the 1990s. This was not necessarily because Scottish civil servants were reluctant to fight their corner in Whitehall. They did when they could. It is not to say, either, that they lacked channels of influence in Whitehall, though a number of interest groups maintained that at times officials could be outranked, and so were potentially vulnerable. It is purely and simply that not all policy issues could be resolved satisfactorily by bureaucratic means (i.e. consultation,

1999: business as usual? 81 correspondence or inter-departmental committees), rather, in the last resort the most sensitive decisions were dealt with by ministers. Thus in the final analysis, when contentious issues were at stake, and when Scottish officials had failed to influence the outcome through bureaucratic channels, were Scottish ministers willing or able to secure a satisfactory accommodation with their colleagues in UK departments? Sometimes they could and sometimes not. And the same holds true vis-à-vis the Scottish Executive and the EU at the time of writing, despite the potential for the JMC to act as a conflict resolver, because for the most part political authority38 resides not in Edinburgh but still in London, and increasingly in Brussels. Ultimately, therefore, the key variable is not so much inter-governmental processes (i.e. consultation, the aggregation of interests and the formulation of a UK ‘view’) which are rightly or wrongly perceived to be excellent, but, the structures of power.39 Under the existing constitutional arrangement, the power structures retain their potential to militate against those processes. As Bourne surmised, ‘of all the sources of regional power, legal-constitutional powers are the most fundamental’ (Bourne 2003). Whilst the EU served to highlight Scotland’s constitutional weakness prior to devolution (Mitchell 1997), the same holds true today. Thus, on the one hand, day in and day out, officials and their ministers work together to ensure that Scotland can influence the outcome where necessary. But in contrast to those who advocate multi-level governance, in terms of power relations, and in spite of competence overlap in some instances, this remains overly hierarchical so far as the UK’s territories are concerned. Ultimately, Scotland is politically dependent on decisions taken in London and beyond that in Brussels – the UK government and the EU each in their own way possess greater political authority than the Scottish Executive. More particularly, London remains not only pivotal, but potentially, it is the weak link in the chain because so much rests on goodwill rather than constitutionally entrenched mechanisms. Post-devolution there are plethora of devices which are designed to ensure that Scotland is adequately consulted (where necessary at the highest levels of government), that Scottish views and concerns can be articulated and where there are conflicts of interest these can be resolved. But in the final analysis, albeit that they might engender ‘judicial expectations’, they do not have legal standing, and, they involve a degree of ‘gamesmanship’ in the sense that if it is to retain sufficient influence at the centre, the Scottish Executive must respect the informal ground rules. Thus, in sum, there are grounds for believing that not only is Scotland no better off than before, potentially its influence over international matters may be set to decline further, especially if different parties are in office and their relationship is conflictual. Yet that could be rather too negative a prospect. Scotland now possesses its own parliament; where necessary it can act as a rallying point for Scottish grievance. Whilst the prospect of having divergent political parties in government in London and in Edinburgh is the ‘joker in the pack’, the parliament in a corporate sense also needs to be taken into account. In part this is because regardless of which parties are in office at Holyrood, Scottish ministers will have to answer to MSPs for their actions. That includes foreign

82 1999: business as usual? affairs by virtue of the extent to which the latter impact directly not only on devolved matters but also, more generally, on Scotland’s welfare. Moreover, as Bulmer et al. rightly surmised, it would not be in the UK government’s interest to encourage ‘the devolved administrations to publicly claim that their involvement in UK policy-making was inadequate’, otherwise this would threaten to call into question the worth of the current constitutional arrangement.40 Indeed, as far as the Foreign Office was concerned, ‘the issue of devolution was a key objective for all departments across the board’. Sir John Kerr, then permanent Secretary, described devolution privately ‘as the most significant structural challenge facing his department’. In sum that led Brian Taylor, the well-respected BBC’s political editor for Scotland, to observe: The Foreign Office quite definitely wants to make devolution work, but not purely as an academic or administrative exercise. Its corporate concern, the concern of Her Majesty’s government more widely, is to protect the state, to show that the present, reformed set-up can provide more than Scottish independence would offer. To defend the Union if you like. (Taylor 2002: 278) It could also be argued that the years of Conservative rule between 1979 and 1997 were wholly anomalous. Mrs Thatcher’s governments were noted for their centralism, which encroached increasingly on Scottish autonomy (Midwinter et al. 1991, Brown et al. 1996). This was relatively novel, if the centralism of the 1960s is discounted (Bulpitt 1983). In addition both the Thatcher and Major governments were increasingly hostile to the EU, which at times called into question their capacity to influence the outcome on behalf of the UK, and by default Scotland. Furthermore, neither premier did much to enhance UK–Scottish relations. Though Major undertook his ‘taking stock’ exercise early in his premiership, it amounted to little more than tokenism, save for the concession in Scotland and the Union: a Partnership for Good, that if a majority in Scotland wished, the country could secede from the UK.41 Otherwise he was resolutely anti-devolutionist in his outlook and conduct, and he turned it into something of an election issue in 1997, despite widespread antipathy to this in Scotland. It could therefore be suggested that in conjunction, these events were exceptional and they are unlikely to be repeated in their entirety. If they were something of an historical anomaly, then it could also be argued by those who support the constitutional status quo, that pragmatic and informal arrangements worked well during the era of Bulpitt’s ‘Dual Polity’. In the ‘right hands’, therefore, they would continue to do so in the future. Consequently, as such, the New Pragmatism can also be viewed as yet another ‘bargain’42 between elites in the UK and Scotland, against the back-drop of popular aspirations for Scottish autonomy during the 1980s and 1990s. Whether this ‘new bargain’ is sufficiently robust to withstand forces external to the UK remains to be seen, however. In sum, it is far from certain as to whether devolution will markedly transform Scotland’s influence in relation to both the EU and international relations more

1999: business as usual? 83 generally. From a bureaucratic perspective, at first glance at least, it appears to be business as usual. Although various mechanisms have been established to ensure that the Executive is interconnected with London, they do not appear to have much if any legal standing and to some extent their efficacy is dependent on the UK government’s largesse. If a future Scottish administration were not to respect the ground rules concerning the concordats and JMC, then it would have to suffer the consequences – it could be excluded from the formulation of EU policy at the highest levels of government. Given the deficiencies which pre-dated the current constitutional arrangement, that is cause for concern. The flaws prior to 1999 related not to bureaucratic processes per se but to the lack of political authority in Edinburgh. As far as EU policy formulation is concerned, to no small degree ‘power’ continues to reside in London and the UK government continues to act as gatekeeper. In 1999 it therefore appeared as though Scotland was little better off with regard to international affairs than was the case before – something which rather stood in contrast to other territorial governments in the EU and beyond.

7

Territorial mobilisation in the EU and beyond

The role of regional democracy and of regional Parliaments and Governments is only wakening up. Our time has finally come. The debate will be about sharing sovereignty at a European level, and about what the use of national sovereignty at the beginning of the century will be about and what the contribution of real, bottomup democracy will be. (Hans de Belder, Secretary General of the Assembly of European Regions)1

As Hans de Belder observed, Scotland was by no means alone in having to come to terms with European integration or globalisation. Other territories, especially those with legislative powers, faced much the same dilemma – how best should they respond? In practice, the outcome varied from country to country. Some territories, such as Quebec, had historically enjoyed a degree of competence over international affairs, in part thanks to their constitutional status. Likewise, in Belgium or Germany, where there was a federal system of government, the regions and the communities eventually managed to secure greater influence over international matters. For other countries the situation was less clear cut. The Spanish autonomous communities enjoyed a degree of autonomy but this appears to have been rather less ‘constitutionally embedded’ compared to their counterparts in Germany and Belgium. As their attempts to secure a measure of influence over foreign affairs has not been without its problems, it could be supposed that potentially the constitutional arrangement in a particular country could matter a great deal. But that was not the whole picture as a successful outcome also rested on collaboration and goodwill between the two tiers of government (i.e. the state and sub-state tiers).

The Europeanisation of domestic policy The notion that European affairs and domestic matters were quite distinct has become less tenable, as more and more competence has been assigned to the EU. The net result has been the ‘Europeanisation of Domestic Policy’ (EDP). EDP is based on the twin premises that the EU can no longer be classified as foreign policy

Territorial mobilisation in the EU and beyond 85 in the traditional sense, and that by default, it is no longer sustainable for central governments to monopolise the handling of European matters. Some regions, especially those with relatively high levels of autonomy, have therefore demanded that they should be entitled to the same degree of influence over EU policy-making, as was the case when competence for that policy originally resided with the territorial and/or the central government. But rather than attempt purely to secure greater control over the EU itself, EDP was essentially ‘introspective’ because potentially central government could be pivotal to the outcome. From this perspective, the governments of the Member States were the most influential actors with regard to EU policy-making. Hence, if the regions wished to offset the potential for political dependency as a result of European integration, this could best be done if they exercised greater control over how their central government formulated its position in relation to the EU and its policies.2 The German Länder For the most part, the arrangements, which evolved between 1957 and 1987, were ad hoc and pragmatic. Ultimately, however, they also proved to be wholly inadequate from the Länder’s perspective. When the latter called for the right of consultation with regard to the formulation of Germany’s position on EU policy, this was at first resisted by the Federal Government of Germany (FRG) on constitutional grounds. Although representatives from the Länder were allowed to join the government’s delegations to the EU,3 the Bundesrat (the chamber comprising delegates from the Länder) was not automatically entitled to representation in the Council.4 However, there was an informal understanding that the FRG should inform both the Bundestag and the Bundesrat if EU legislation had to be ‘transposed into German law, and if such legislation had direct effect at the domestic level, then the Bundesrat had to be notified before any decision had been taken in the Council’. It was also agreed that the Länder should have their own representative in Brussels (Börzel 2002: 61). Although these arrangements were not insignificant, not least because they conceded that the Länder had certain entitlements regarding the FRG’s handling of European matters, they were not legally binding and as such they fell outside Germany’s Basic Law. In 1975 a working group was established to consider how co-operation between the Länder and the FRG could be improved upon. Four years later the FRG agreed to up-grade its provision of information to the Länder and from time to time representatives from the Länder did vote in the Council.5 The conundrum remained, however – whether the Länder should attempt to increase their influence directly over the EU and its institutions or whether they should also focus on intergovernmental mechanisms within FRG. By the mid-1980s, matters came to a head when it became increasingly apparent that the ad hoc pragmatic arrangements were insufficient. For instance, by March 1986, there had not been a single occasion when the Länder had managed to arrive at a common position, as had been hoped under the 1979 procedure.6 All in all the existing arrangements were held to be ‘toothless and ineffective’ (Jeffery 1997b: 59).

86 Territorial mobilisation in the EU and beyond The SEA represented something of a watershed in 1987 because it marked the moment when the Länder, or more specifically the Bundesrat, looked set to secure formal control over European affairs (Burgess and Gress 1991). By now it was apparent that the EU could no longer be regarded as falling simply within the ambit of foreign policy. It was from henceforth viewed as being akin to domestic policy.7 More particularly, the early 1980s was an era when the co-operative federalism, which hitherto had been the hallmark of inter-governmental relations was supplanted by a more competitive relationship (Gerstenlauer 1995: 198). Consequently the Länder showed less hesitation in standing up to the FRG, if necessary bringing matters to the constitutional court. But with European integration set to gather pace once again, it was clear that decisions which previously fell within the Länder’s competencies, would now be assigned to the EU. The Minister Presidents therefore argued at their annual conference in 1987 that the EU should have a similar federal structure to that of the FRG and that decision-making should be reflective of the principle of subsidiarity.8 For its part, the FRG was accused of failing to consult the Länder sufficiently over EU matters. Although the Länder did not possess any formal entitlements when the FRG signed up to the SEA, the FRG did in practice seek their approval. They therefore treated this potential veto as ‘a window of opportunity which would enable them to secure formal and participatory rights in European policy making’ (Börzel 2002: 65). Consequently, they called for the entitlement of ‘extended rights of participation’ to be incorporated in the ratification Act.9 The ensuing negotiations lasted a year but eventually the Länder got what they wanted. Their rights over EU policy were legally enshrined, thereby supplanting the pragmatic arrangement dating from 1979, which by then was demonstrably ineffective.10 The Länder subsequently put this to good effect with regard to the inter-governmental conferences (IGC) which predated the TEU, during which time they were increasingly involved in shaping the regional agenda both within the FRG and within the EU itself (see section below on third-level mobilisation). As far as the Länder were concerned, the TEU had far-reaching implications. A Commission of Minister Presidents was established in 1990, which met on 37 occasions the following year.11 When the TEU was finally agreed between the Member States, some of the Länder’s demands had been realised. The establishment of the CoR ensured that the regions now had a formal role to play in EU policy-making. Article 146 of the Treaty enabled sub-state authorities to vote in the Council, where their constitutions so allowed. Although the latter was the product of pressure from the Belgians rather than the FRG, it was of considerable relevance to the Länder.12 Despite these gains, however, doubts persisted over the continuing ability of the EU to encroach on the Länder’s competencies.13 It therefore became apparent that the Basic Law had to be amended accordingly. Thus, from the Länder’s perspective, up-grading internal mechanisms within the FRG became the optimum means of exercising control over European matters and offsetting the detrimental effects of Europeanisation. Article 23, in particular, was something of a milestone for the Länder. Under this article the Bundesrat would be ‘involved’ both in relation to ‘matters concerning the European Union’

Territorial mobilisation in the EU and beyond 87 and ‘the decision-making process of the Federation’ in those areas which fell within the Länder’s remit. It also included the following provision: Where essentially the legislative powers of the Länder, the establishment of their authorities or their administrative procedures are affected, the opinion of the Bundesrat shall prevail in the decision-making process of the Federation. Article 79, which related to those occasions when the Basic Law needed to be amended, was also significant; it required a two-thirds majority in favour in both the Bundestag and the Bundesrat.14 This was no mean achievement as far as the Länder were concerned. From that point on, they enjoyed certain legal rights with regard to the formulation of the FRG’s position on EU policy, in those areas which fell within their exclusive competence. Collectively, they now enjoyed a veto (in relation to the German government) over further transfers of competence to the EU (a two-thirds majority being required in favour of such a transfer). Hitherto, they were supposed to have arrived at a common position through unanimity, but from henceforth, this would be replaced with voting by majority. As a result, a single Land could then be out-voted. However, Gerstenlauer maintained that this would ensure that the Länder would be more powerful in their ‘totality’ (Gerstenlauer 1995: 210). In the run up to the IGCs in 1996 and 2000, the Länder appeared to be rather less concerned. With regard to the 1996 IGC, the emphasis continued to focus on internal constitutional mechanisms. When they did refer to subsidiarity and the right to bring cases before the ECJ, this was therefore concerned primarily with the Länder’s domestic competencies, rather than it being an attempt to secure more autonomy for the EU’s territorial administrations per se.15 By now, however, the Länder lacked unity and it was less likely that they would use their veto. Hence, even when they apparently constrained Chancellor Kohl’s room for manoeuvre over the proposal to extend QMV in the Council under the Treaty of Amsterdam, this may well have been with the FRG’s acquiescence rather than by virtue of the influence of the Länder per se (Bulmer et al. 2000: 81–83). In March 1998, the treaty was ratified unanimously by the Länder.16 They did, however, have a number of concerns regarding the 1999–2000 IGC, which pre-dated the Treaty of Nice. For example the third pillar of the EU – Justice and Home Affairs – threatened to encroach on their responsibilities. They also reiterated their demands for a tighter application of the subsidiarity principle and the right of appeal to the ECJ. The division of competencies was another sticking point, but this was resolved by a reference to this in an annexe of the Nice Treaty stating that it would be re-visited at the 2003 IGC.17 So, once again, ratification passed off peacefully. In sum, the Länder enjoyed considerable success in securing substantive influence over how the German government formulated its position with regard to the EU and its policies. For the most part this was the result of co-operative federalism, the product of which was non-confrontation, negotiation and the desire for consensus (i.e. ‘Federal Loyalty’).

88 Territorial mobilisation in the EU and beyond The Belgian regions and language communities The governmental structures in Belgium are amongst the most intricate in the EU. There is a federal government, as well as three regional governments and three community councils (the sub-state institutions being collectively referred to herein, as ‘sub-national entities’). During the last thirty years or so, there have been a series of constitutional reforms, which were designed to provide more autonomy for the sub-national entities18 (SNE). The first amendment to the constitution was undertaken in 1970, followed by another in 1980. There were further modifications in 1988 and 1993. In 1970 the communities secured competence for international affairs but there was some ambiguity over the entitlement to conclude treaties with third countries. The 1980 amendment to the constitution enabled them to ratify ‘treaties and agreements on EU matters’. The 1988 amendments were supposed to resolve the issue of ‘treaty negotiation and their conclusion’ but the Belgian parliament did not enact the necessary legislation to put this into effect.19 It was agreed, however, that the SNEs would be ‘consulted’ concerning the formulation of Belgium’s position on EU policy in those policy areas which fell within their competencies.20 The 1993 reform was particularly salient for the regions because they now stood on a par with the communities; they too could now conclude international treaties.21 That though was only a part of the picture due to the structures of authority in Belgium. Belgium’s government was further complicated due to its federal characteristics, which by the mid-1990s could be characterised as a form of ‘dual federalism’ (Hooghe 1995b). That was because for the most part competencies resided exclusively with either the federal government or the SNEs, with only a relatively few powers being concurrent. This meant that there was a jurisdictional division of powers rather than a functional one.22 Furthermore, there was no hierarchy of authority between the federal government and the SNEs. This was to pose its own dilemma at the end of the 1980s. Just as more autonomy had been ceded to the SNEs, the federal government looked set to secure a degree of influence, as a result of European integration, over what had until then been their exclusive competencies. Hitherto, co-ordination of European affairs had been undertaken at the federal level. This fell within the remit of the Ministry of Foreign Affairs or more particularly ‘P.11’, its Directorate for European Politics.23 There was also a Ministerial Committee for European Affairs, which was chaired by the Belgian Prime Minister.24 Then there was a Deliberative Committee which also handled EU matters. It was this body that would be pivotal to the regions and communities, when it was agreed that the SNEs could be a part of the Belgian negotiating team at the IGCs in the run-up to the TEU. By this time the SNEs had two goals. They needed to secure further internal reforms, which would enable them to exert more influence over how Belgium formulated its position on EU matters. They also set out to secure direct access to the Council, in those areas of policy which affected their exclusive competencies. In both instances they were successful. Article 146 of the Treaty ensured that sub-state governments could vote in the Council (where

Territorial mobilisation in the EU and beyond 89 their constitution so allowed) – but in so doing they were committing their state as a whole.25 That meant that there needed to be some form of co-ordination within the Belgian State itself. That led to the ‘Special Law’ and the ‘Co-operation Agreement’ in 1993 and 1994, respectively. The new arrangement was based on ‘equity’ in so far as the federal government and the SNEs would be of equal status when Belgium was formulating its position on EU policy. The P.11 meetings continued as before with a mix of representatives from the federal government and the SNEs. The representatives from Belgium’s permanent representation in the EU were also present. If one or more of them disagreed on a particular issue, it could then be referred to the Inter-ministerial Conference on Foreign Policy, the constituent members of which were ministers from the various administrations. They each had the right of veto. However, if one or more of these ministers disagreed on an EU proposal, then Belgium would abstain from voting on that issue in the Council, though it was also agreed that such an abstention should not disrupt EU decision-making when voting in the Council was unanimous.26 Technically, the veto remained in force regardless of whether the competencies in question were exclusive to the Federal government or to the SNEs. However, it was apparent that the latter ‘kept a low profile when matters outside their jurisdiction were being considered’.27 The issue of who actually voted in the Council depended on whether it was a federal matter or a subnational one or a mix of both. There was also an arrangement amongst the SNEs that ensured that over time each one had an opportunity to vote in the Council of the EU. It soon became apparent that this system was not without its defects, however. This was especially so where decision-making in the Council was by QMV. It also lacked efficacy with regard to the working groups in the Council (Kerremans. and Beyers 1997: 51). Furthermore, given that as many as twenty-five representatives attended the P.11 meetings, consensus sometimes proved elusive and time consuming. That had a number of ramifications. Faced with ‘agenda overload’, it was decided that P.11 would concentrate on the most contentious issues and ‘rubber stamp’ the rest. There was also a tendency to resort to ‘less formal co-ordination mechanisms with a smaller circle of participants’.28 But the dilemma remained that when EU matters came before the P.11 committee, this could well be much too late. As a result, the co-ordination arrangements required further refinement. That led to a variety of ‘specialised co-ordination mechanisms’, some of which were highly formalised, whilst others were short-term and ad-hoc, depending on the salience of the particular policy field to the various actors.29 Lastly, the federal and sub-national parliaments were entitled to ratify changes to the EU’s treaties Inherently there was the risk that the use of veto by any one of the various institutions could result in incoherence regarding Belgium’s position, when the Council was due to vote. Apparently the reverse applied. That was because such an outcome would not have been in the interests of the Belgian actors themselves. Hence, there was an onus on them to collaborate.30 That this happened was due to the relatively small number of actors involved, whereas unanimity had been shown

90 Territorial mobilisation in the EU and beyond to be less appropriate for the 16 Länder. Thus, Belgium appears to be a relatively unusual example of the aggregation and promotion of territorial interests in the EU. The Spanish autonomous communities Spain’s situation was markedly different to that of Germany and Belgium. It did not join the EU until 1986, prior to which the country had undergone constitutional reform following democratisation in 1978, in the aftermath of the Franco dictatorship. Although that resulted in a degree of decentralisation of authority to the seventeen ‘autonomous communities’ (AC), this was inherently asymmetrical. Consequently, the constitutional status of the Spanish ACs differed from that of the German Länder and the Belgian SNEs. The Basque country, Catalonia, Galacia and Andalusia enjoyed ‘special’ or ‘full autonomy’ – as the so-called ‘historic regions’ – whereas the remainder only secured ‘general autonomy’, although in theory the latter were entitled to seek ‘full powers’ after a five-year period (Morata 1995: 116). Each AC had its own executive, legislature, judiciary and president. Both types of community possessed a range of competencies including urban planning, fisheries and the environment. The historic regions were also responsible for health and education. In some areas of policy such as culture and research there was an overlap of competence between the two tiers of government.31 The ACs also enjoyed a measure of financial autonomy, although this too varied, with the Basque country at the upper end of the scale. From time to time, over the last few decades, the relationship between some of the ACs and the central government has been one of conflict – something which European integration exacerbated further. One of the deficiencies inherent in the existing constitutional settlement was that for the most part the ACs were excluded from the Spanish government’s decisionmaking processes. Although there was limited representation for the ACs in the Senate, the latter was dominated by ‘national’ rather than regional parties. Allied to which, some parties, for example the socialists, felt little need to promote regional autonomy when they secured a majority. The net result was that the ACs could adopt one of two strategies when attempting to influence the centre. Those administrations of a similar political hue to the majority party at the centre could try to secure concessions through the internal party machinery. Thus, as far as Catalonia was concerned, its modus operandi was to collaborate with the centre on EU matters, and in so doing, to capitalise on ‘party connections and networks’,32 rather than attempt to secure a ‘formal mechanism’ akin to those in Germany.33 Where such a strategy was not an option because regionalists or conservatives held power (at the AC level), the territorial administration might choose to adopt a more confrontational approach.34 As the ACs did not enjoy privileged access to decision-making at the centre vis-à-vis domestic matters, they supposedly had less to lose as a result of European integration, compared to their counterparts in Belgium and Germany. Nevertheless, they were directly affected by the implementation of EU policies in areas which

Territorial mobilisation in the EU and beyond 91 hitherto had fallen within their competencies.35 Consequently, it was apparent that Spain’s accession to the EU could have adverse consequences for the ACs unless this was resolved satisfactorily. In response, the central government called for an ‘Agreement for Co-operation in Community Matters’ in 1986 but it was not much of a success. Had it worked, the Agreement would have enabled the ACs to aggregate their interests in relation to a given EU policy and transmit this upwards to the Spanish government. The latter would then have accommodated their common position vis-à-vis the matter at hand. That proved problematic in two respects. Given the diversity of the communities’ competencies, arriving at a common position appeared onerous to say the least, and Catalonia along with the Basque country sought privileged treatment. There then followed an ad hoc arrangement, which was not dissimilar to the German system prior to 1992,36 but that did little to resolve conflict between the two tiers of government. Between 1981 and 1999, 1,000 cases were brought before the Spanish Constitutional Court, two-thirds of which originated from the ACs.37 Towards the end of the 1980s and on into the following decade there was some progress towards establishing closer collaboration between the Spanish government and the ACs over EU matters. In 1988, an inter-ministerial conference on EU affairs held its inaugural meeting, which was then followed by another the following year. The conference became ‘institutionalised’ in 1992, although the Basque country remained on the sidelines for the next three years; it claimed that its status merited special treatment. In 1994, the ACs and the Spanish government agreed on the need to set up sectoral conferences, thereby providing the former with a greater input into the formulation of Spain’s position over a given EU policy. This was supposed to be particularly so when an EU policy related primarily to the ACs’ exclusive competencies. In such instances the intention was that they should arrive at a common position and that in turn would then be replicated by the centre during negotiations in the Council. In 1998, the Spanish parliament38 demanded that representatives from the ACs should be entitled to attend the Council in relation to sectoral areas of policy. However, this was rejected by the foreign ministry.39 That apart, cumulatively these various pragmatic arrangements were designed to accommodate the concerns of the ACs over the Europeanisation of their domestic competencies. Over time, however, it would seem that there had been something of a sea change, regarding the ACs strategy. To begin with, as was suggested above, the tendency had been for them to adopt a more confrontational relationship with the centre, where EU policy was concerned. But within a relatively short time, having witnessed the success of the Länder, they took a leaf out of the latter’s book and opted for a more conciliatory approach (Börzel 2002: 149). Thus the mid-1990s, it would seem, were potentially a turning point. The centre itself ‘no longer enjoyed a monopoly over European affairs; its decision-making powers (concerning the formulation of its position on the EU) were to be shared with the ACs for the first time ever’.40 Subsequently, however, there were occasions when the fortunes of the ‘national’ political parties had a distinct bearing on attempts to decentralise EU matters to the ACs (Bourne 2002).

92 Territorial mobilisation in the EU and beyond When the Spanish Socialist and Popular Party (PP) governments failed to secure a clear majority in the ‘national’ parliament between 1993 and 2000 they were reliant on their colleagues in the regionalist parties, and in so doing, they were more amenable to the latter’s demands for greater decentralisation. That ceased somewhat when the PP secured a majority in 2000, after which the PP continued to prevent the ACs from directly participating in the Council of the EU.41 Moreover, Bourne also suggested that the inter-governmental conference (the Conference for Affairs Related to the European Communities) and the sectoral conferences were wholly deficient, especially on those occasions when the ACs failed to arrive at a common position. Where that was so, the centre was less able to promote their interests in the EU. Furthermore, from her perspective, not only had European integration ‘intensified the conflict between the Basques and the centre’, it had also resulted in the ‘dis-empowerment’ of the Basque country (Bourne 2002: 13, Bourne 2003). In sum, therefore, it would appear that the Spanish experience somewhat contrasts with that of Belgium and Germany. In the absence of a wholly federal arrangement, which clearly delineated competencies between the various tiers of government, there was more reliance on pragmatic and ad hoc devices – which the Länder and the Belgian SNEs had rather discarded. Consequently, the political fortunes of ‘national’ parties could have a bearing on the outcome, when the ACs demanded a bigger role in EU affairs. Furthermore, the ACs had no right of veto with regard to the ratification of the EU’s treaties. Transcending that though was the relative absence of commonality between the ACs, both institutionally and politically. They also lacked an institution such as the Bundesrat, which would have enabled them to promote and defend their interests collectively at the state level. Moreover, their very diversity potentially undermined their chances of arriving at a common consensus where EU matters were concerned. All in all therefore, it would seem that European integration has been disadvantageous to the ACs’ autonomy.

Third-level mobilisation From time to time the regions (the EU’s ‘third level’) have attempted to mobilise collectively, in a bid to enhance their influence in the EU. Their demands included, where appropriate, a closer involvement when the Commission formulated policy, direct access to EU decision-making where their exclusive competencies were involved, and the right to bring cases before the ECJ over infringement of the principle of subsidiarity. Integral to their cause was the notion that there should be a precise delineation of competencies between the three levels of authority.42 Thus, progress towards political union should not be at the expense of regional autonomy. Authority should be shared between the three layers of government, somewhat akin to a federal polity. The momentum for this originated to no small extent from the Länder, which itself was stimulated briefly by the perception that there was ‘a bottom-up demand’ for territorial empowerment in the EU.43

Territorial mobilisation in the EU and beyond 93 In the run up to the TEU, the Länder therefore acted as the rallying point for sub-state mobilisation across the EU. This was in part because they believed that ministers from sub-state governments should be entitled to vote in the Council. They therefore organised a number of conferences on ‘Europe of the Regions’ in 1989 in a bid to drive the third level agenda forwards.44 That the Länder should support third-level mobilisation was something of a flash in the pan, however. The events leading up to the TEU were somewhat exceptional (e.g. the collapse of the Communist regimes in Central and Eastern Europe, and a ‘blue sky’ approach by elites concerning the EU’s future).45 The Länder’s enthusiasm for third-level mobilisation subsequently cooled, partly because it soon became apparent that the regions were simply too diverse to maintain a common front. Furthermore, in the aftermath of the TEU, the Länder had secured greater control both over internal mechanisms in relation to the German government. Thus, for most of the Länder, the allure of third-level mobilisation was virtually redundant by the mid-to-late 1990s.46 That left others to pick up the baton, as the EU readied itself for further integration. During September 2000, a group of twenty ‘constitutional regions’ met in Brussels at the instigation of Flanders. Their intention was to agree a Common Position Paper, which would then be submitted to the IGC later that year – itself a precursor to the Treaty of Nice. The Paper requested that the status of the CoR should be up-graded, the constitutional regions should have direct access to the ECJ where appropriate, the principle of subsidiarity should be respected, and, there should be a clearer delineation of competencies in the EU. Although this appeared to fall on fallow ground at the IGC, the Group agreed to convene a Colloquium in February 2001 consisting of a mix of actors including academics, officials and politicians. The Colloquium acted as a think-tank in readiness for a political declaration by seven of the Group the following May. The ‘Flanders Declaration’ was something of a reiteration of the demands submitted in the run up to Nice during the autumn of 2000. The most ambitious element related to the ECJ, where the declaration included the demand that the constitutional regions should be entitled to bring cases before the court ‘when their prerogatives were harmed’.47 This raised a number of issues, not least that a territorial government might opt to take its own state government to the court if it believed its competencies had been infringed. As far as Bavaria and North-Rhine Westphalia were concerned that was of less relevance as this was covered by the Basic Law but for the other signatories, including Scotland, potentially, it was more controversial (see next chapter). During November 2001, when the Second Presidential Conference of the Regions with legislative power met, it resulted in the ‘Liège Resolution’. Liège was essentially the successor to the Flanders Declaration the previous May but there were subtle differences between the two. At Flanders, only seven regions participated, whereas at Liège the number had increased to fifty-two – the growth in support was very much in line with what the ‘Flanders group’ had hoped for. But the resolution appeared to be a slightly watered down version of the earlier declaration. There were a number of explanations for this. First, the constitutional status of the participants was considerably more divergent at Liège, with some

94 Territorial mobilisation in the EU and beyond having much less autonomy than the original group of seven – for example a number of the new signatories did not have legislative powers. Second, there was agreement that there was little point in replicating word for word the declaration in May. Third, it was reflective of how things were evolving within the EU. By this time the Member States had agreed to establish a Convention which would prepare the ground for the next inter-governmental conference, which had been scheduled for 2003. However, there was to be no direct involvement on the part of the regions (each ‘national’ delegation was to comprise one government representative and two ‘national’ parliaments’ representatives). The Resolution therefore demanded that ‘all Governments [should] include regional representatives in the national delegations at the Convention’.48 In the event that was to have little effect on the heads of government and state at the next EU summit at Laeken. But they did agree that the Committee of the Regions could send six delegates to the Convention as ‘observers’. All in all collective, third-level mobilisation effectively failed to outlast the TEU. Instead, some regions, especially those with legislative power (subsequently referred to as RegLeg), have attempted to constrain or ‘rein in’49 the EU when it encroached on their competencies. For their part, the Länder have concentrated more on internal mechanisms within the German government – the exceptions being those Länder which tended to be rather more sceptical of the merits of the EU. In the aftermath of the TEU, much of the regions’ demands have been ignored at successive IGCs, and it remains to be seen how far the same holds true when the Member States finally agree on the provisions for the next EU treaty.

The internationalisation of territorial politics Internationalisation is similar to Europeanisation, inasmuch as international matters can impact directly on competencies, which fall exclusively within the remit of the regions. As with Europeanisation, regions, which enjoy the most autonomy, are liable to be particularly affected, but all the same, they may be better placed to redress the consequences. As state governments have become less involved in economic development at the sub-state level, the onus rested with the regions to ameliorate or capitalise on the effects of globalisation (Keating 1999: 3). The regions therefore set out to encourage multi-national companies to establish branch plants in their territories, for example. However, economic factors were not the only elements that have encouraged the regions to participate directly in the international arena; cultural and political considerations also need to be taken into account.50 Some regions, particularly those where the people undertook mass migration to another country, have attempted to capitalise on this by cultivating links with their forebears. The Basque community in the USA is one such example.51 Keating also identified one more variable – a region’s political leadership. A particular minister might develop an international agenda as a platform for internal region building.52 Some territories which possessed a strong sense of national, cultural and historical identity might develop a foreign affairs strategy which was not only divergent from

Territorial mobilisation in the EU and beyond 95 that of their state government but was also indicative of those territorys’ desire for independence. Others might adopt a high international profile in order to emphasise that they should not be regarded merely as regions.53 Either way, in practice, it was not without its problems. That was because of the strain that it imposed on the resources of a territorial administration, as it attempted to secure more autonomy internationally. Equally, its room for manoeuvre was likely to be constrained. In part, this was because, for the most part, state governments would be reluctant to allow their regions too much autonomy in the international arena.54 Moreover, other countries might be reluctant to treat them as if they were sovereign states in their own right; this did not deter France from developing a special relationship with Quebec, however. Quebec has traditionally enjoyed a high degree of autonomy in the international arena (Balthazar 1999: 153). This was primarily by virtue of historical antecedents – namely the conception of its political elite that the Canadian confederation of 1867 was ‘an equal pact between two nations, which allowed the Quebecois to establish their own political institutions’.55 Indeed, Quebec’s involvement with third countries predated that of the Canadian federal government.56 There were a number of reasons for this. One factor was that until recently Canada had a ‘loose and decentralised conception of the national interest’57 and where it did involve itself in international affairs, this related primarily to economic matters, or more particularly the export of raw materials. But responsibility for natural resources rested with the provinces, thus cultivating their interest in international affairs. Transcending that though was Canada’s own constitutional status. As a part of the British Empire, formally it lacked the authority to formulate its own foreign policy until 1931 and, when it did so, the provinces possessed a degree of autonomy in relation to international matters as well.58 This was of limited consequence, however, until the 1960s when the separatists in Quebec began to gain ground. Although Quebec was well placed to take advantage of the ‘blurring’ between domestic and international matters,59 to date progress has been limited. One of the drivers for autonomy was Quebec’s francophone culture, which its political elite believed could be better promoted internationally by the Quebec government itself. But when a doctrine was formulated in 1965 which was designed to allow Quebec to conclude agreements with France unmediated by the Canadian government, that led to tensions between the two.60 For a while there was a compromise of sorts, even when the Partie Québécois (PQ) became the governing party in 1976. But when it secured office once again in 1994 under new leadership with a more ‘radical agenda’, concern mounted in Ottawa.61 By this time, according to Balthazar, a ‘Canadian’ nationalism from within the English-speaking Canadian elite was increasingly at odds with Quebec’s ‘proto-diplomacy’.62 Two factors then came into play. Firstly, a statement on foreign policy by the Canadian government highlighted Canadian unity, and, in so doing, it implied that Quebec’s autonomy internationally was limited at best. Secondly, the leader of the PQ somewhat drew back from foreign affairs, preferring to focus instead on economic matters.63 Moreover, by 1996 a number of overseas missions which had been established in previous years as quasi-embassies proved to be too costly in the face of declining

96 Territorial mobilisation in the EU and beyond budgets, and a good number of them were shut down. This, though, should not be taken to mean that Quebec no longer took a close interest in foreign affairs – especially in relation to France.64 Yet, Balthazar (1999) viewed the overall outcome as something of a disappointment. In constitutional terms, theoretically, Quebec could have secured greater autonomy over international affairs, if the relationship between it and the Canadian government had been more collaborative. That this was not to be, so it was argued, was in part the product of a separatist nationalism in Quebec colliding with a more potent Anglophone Canadian nationalism. Other territories were confronted with a not dissimilar problem. For example, the Basque country faced an up-hill task when it attempted to attract inward investment. Under the ‘Economic Agreement’, it enjoyed substantive fiscal autonomy and it eventually resorted to a range of incentives in order to attract multi-national companies such as Daewoo to locate there. That led to friction with the Spanish government. It challenged the legality of such incentives in the Constitutional Court. However, as this related to rules on competition, the matter also fell within the EU’s ambit and the European Commission maintained that the use of such incentives was illegal. Paradoxically, both the Spanish government and the Basque country then buried their differences and eventually the case was withdrawn from the Constitutional Court, and this in turn extinguished the EU’s involvement.65 Nevertheless, it was indicative of the constraints which could be imposed on territorial governments if they apparently took a step too far. Some regions were better placed than others however. The Belgian SNEs, for example, had a relatively free hand concerning foreign affairs. Under the current constitutional arrangement they could conclude treaties with third countries providing that the country in question already enjoyed diplomatic relations with the Belgian state.66 It would appear, therefore, that a territory’s constitutional status could have a distinct bearing on its capacity to pursue its interests internationally, though this is by no means clear cut.67 In Quebec’s case the latter had historic antecedents. For the Belgian SNEs and the German Länder this entitlement was secured over time. However, Quebec’s situation indicated that there could be limits to how far it could conduct its own ‘alternate’ foreign policy in the face of resistance from the Canadian government. It was not an independent state in its own right and its autonomy was constrained as a consequence. What emerges, therefore, is that when these territorial administrations wished to influence international matters – either directly or via their state government – the outcome could be more successful if there was close collaboration between the various tiers of government. Goodwill therefore potentially counted for much. The situation in Spain was not dissimilar. The inter-governmental relationship was sometimes one of conflict over constitutional matters, though it should also be noted that only a couple of provinces – which enjoyed historic rights, that they were anxious to protect – were examined here. So, it would seem that goodwill and constitutional mechanisms are somewhat akin to the ‘chicken and the egg’? Which comes first? Although goodwill is to be much prized, arguably, it alone falls short of more formal mechanisms, such as those which currently exist in Belgium and Germany. They enabled territorial

Territorial mobilisation in the EU and beyond 97 governments in those countries, eventually, to exercise a degree of control over how their state governments formulated their position in relation to European affairs. Clearly, goodwill (i.e. Federal loyalty) on the part of the FRG helped ensure that the Länder did indeed secure certain entitlements regarding European matters. Arguably, such goodwill as there was, was underpinned by a federal system of government, thereby ensuing not only that the distribution of authority was much less hierarchical, internally, but ultimately, so too, in relation to European affairs. The same could be said of the Belgian SNEs, save that this also applied to international relations, more generally. This somewhat contrasts with the more pragmatic set-up in the UK, where goodwill is much valued, but where the structures of power are rather more hierarchical.

8

2003 A Scottish foreign policy?

The Labour party believes that there are long-standing connections, common interests, which united the parts of the United Kingdom. Obviously Europe will impact more and more upon all of us. But I don’t see us going down a nationalist road at any point (Donald Dewar 1991)1

Although Scotland has yet to take the ‘nationalist road’, the first four years of devolution2 has been something of a roller coaster ride.3 For example, during this period there were three First Ministers in quick succession (Dewar, McLeish and McConnell). However, for the most part, the Labour and Liberal Democrat coalition managed to ensure that there was a degree of coherence to Scotland’s government, despite ministerial changes. Even so, in 1999 Scottish politics was an amalgamation of aspiration and symbolism. There were high hopes that the parliament would transform Scotland for the better – in contrast to years gone by – when there had been a growing perception that Scotland had been misgoverned by politicians in London. Now once again Scots would govern themselves, and, in so doing, it was expected that the country would be administered better. That though has been something of a mixed blessing for the country’s political elite. Ministers and officials from the Scottish Executive now had to face MSPs at Holyrood.4 Yet, whilst the government of Scotland has become rather more transparent (though some might say ‘not enough’), doubts persist over Scotland’s autonomy. That was particularly so in relation to international affairs where, formally, competence was reserved to Westminster. Moreover, despite the inception of the new parliament, decisions on a swathe of policies were decided in Brussels, and, international forces beyond the UK’s borders also stood to affect Scottish matters. Yet both the Executive and the parliament had to prove their worth, at a time when devolution was in its infancy. Given that their autonomy was limited, this would be no easy task. More particularly, under the current pragmatic constitutional arrangements surrounding inter-governmental relations between Edinburgh, London and Brussels, there was the risk that Scottish ministers could inadvertently exceed their authority in their attempts to fight Scotland’s corner on the inter-

2003: a Scottish foreign policy? 99 national stage, or of course underplay their hand. Would a nascent Scottish foreign policy be no more than a trompe l’oeil as a result? In this instance usage of the term foreign policy should not be taken to mean that Scotland acted as though it was a sovereign state in its own right, or that the Executive had pretensions of this. It merely implies that potentially its foreign affairs strategy could be rather distinct from that of the UK, as presumably it would focus primarily on the promotion and defence of Scotland’s international interests. That though touches on a number of issues. For example, would the evolution of a Scottish foreign policy stem from the desire for autonomy in relation to the EU? Would it be a by-product of globalisation or for that matter other international forces? If so, could it be inferred that these variables were connected with the loss of the UK government’s capacity to act as intermediary between Scotland and the international arena? The question is thus raised as to how far Scotland’s foreign interests diverge from the rest of the UK, whether they can continue to be subsumed within the current constitutional framework, and if not whether they will act as a driver for Scottish autonomy in the future?

The Executive’s EU agenda As foreign affairs was a reserved power, the issue of whether or not such a portfolio was assigned to a particular minister in the newly created Scottish Executive was a contentious issue during the parliament’s early days. As Alex Salmond, then the leader of the SNP, observed during the first substantive parliamentary debate on Scotland and the EU, a portfolio for European matters had not been allocated to any one minister. In response, Jim Wallace the Deputy First Minister explained that although ‘all ministers had responsibility for the European dimension of their departments’, both he and Donald Dewar, the First Minister ‘would take the lead’. He added that ‘Jack McConnell co-ordinated policy over the whole range of European issues, he also dealt with European financing and was a member of the UK ministerial steering group on Europe’.5 Dewar wanted the new constitutional arrangements to bed in with the minimum of fuss. That meant that it should not lead to further constitutional strains. During the debate he therefore emphasised that Scottish influence in the EU could be attained best if the Executive was ‘directly involved in every way possible in the formulation of UK policy’, thereby ensuring ‘that that policy was tailored where necessary to Scotland’s interests’. But he added: Because we now have a constitutional base in the devolution settlement, we are able through Scotland House in Brussels to interrelate, to use our influence and to add to the influence of similar areas such as the Spanish autonomous provinces, the German Länder and Italian provinces such as Tuscany and Lombardy.6 Thus, at the outset of his single year in offic,7 Dewar clearly foresaw Scotland playing a prominent role in Brussels alongside other territories with constitutional powers.

100 2003: a Scottish foreign policy? After Dewar’s untimely death, Henry McLeish became First Minister, albeit after facing a challenge from McConnell. There then followed a re-shuffle of ministerial portfolios, a product of which was that Scotland now had four ministers with European responsibilities. Once again the First Minister and his deputy would take the lead, but McConnell now held the European portfolio along with education and Nicol Stephen was appointed as deputy. However, as well as European affairs they would also be responsible for ‘external relations’. Whilst the significance of this should not be over-stated it was clear that the Executive’s foreign affairs agenda would from henceforth not be restricted purely to the EU. That became self-evident when Wallace, who had remained Deputy First Minister, gave a speech to the Conference of Presidents of Regions with Legislative Powers (CLRAE) during 23–24 November 2000 at Barcelona. This event was significant in a number of respects. CLRAE came under the aegis of the Council of Europe, thereby highlighting Scotland’s growing involvement with international bodies outside the EU itself. The speech was about globalisation. Although the themes which it touched on were by no means ground-breaking – they related to the need for regions and small nations to be competitive in the face of deregulated international markets – the subject-matter implied that the Executive’s eyes were focused on distant horizons. He also demanded that, as far as the EU was concerned, ‘regional implementing authorities should be involved earlier in the policy formulation process’, and, ‘that more account should be taken of national and regional differences in implementation’. He too echoed Dewar’s line that the regions with constitutional powers had ‘a prominent role to play in the EU’.8 The following month newspaper headlines made much of the emergence of a Scottish foreign policy that was not only distinct from that of London, but that would also put the two governments on a ‘collision course’.9 Not unnaturally, such headlines were unwelcome for the Executive. But as devolution was only two years old, there was little surprise that the media seized on the Executive’s foreign affairs agenda. However, the ambiguity was not helped by mixed messages emanating from Scottish ministers. On the one hand McConnell was keen to talk up the virtues of Scotland being a part of the UK.10 But press releases issued in that same month on behalf of McConnell and Stephen, respectively, called for ‘a step change in engagement’ with the EU and the need for ‘direct links’.11 Thus both ministers found themselves in something of an ambivalent position. They wanted to demonstrate to Scots that constitutional reform really had made a difference to the country’s relations with the EU but at the same time they had to stress the value of being a part of the UK, so as not to upset ‘London’. Early in 2001, the Executive collaborated with a group of constitutional regions (the so-called Flanders group – since re-named RegLeg). The ensuing declaration was agreed in May 2001. Amongst various ‘demands’, its signatories called for the right to bring cases before the ECJ over infringements of subsidiarity – something, which potentially could have upset UK ministers. However, Brian Taylor, BBC TV’s political editor, offered an insider’s view as to what was going on behind the scenes. From the Executive’s perspective, the words ‘considered’ and consideration’ had to be incorporated in the declaration, otherwise Scotland

2003: a Scottish foreign policy? 101 would not be able to sign up for it. This was regarded as a kind of ‘get-out clause’, thereby ensuring that the declaration was a good deal less forceful than it seemed at first glance (Taylor 2002: 288). Even so, latently the reference to the ECJ served to fuel the concern that at some point in the future, the Scottish Executive, under different political leadership, might have been tempted to bring cases to the court, not just in relation to the EU’s exercise of power, but also in relation to that of the UK government (Wright 2003). Thus by signing the declaration, the Executive, under McLeish’s stewardship, risked ‘grounding’ the pragmatic constitutional arrangement governing Scotland’s foreign affairs agenda. That though was not the only point of tension. Scotland looked set to raise its global profile, but, in so doing, would this be tolerated by London? In an interview with Holyrood Magazine, McLeish went to considerable pains to emphasise the importance of links with the UK, when promoting ‘Scotland’s European and international interests’. But he added that it was incumbent on the Executive to ‘promote Scotland both in Europe and the wider world’, and, that ‘there was a very important international dimension to the great majority of the Executive’s areas of responsibility’. This had formed the rationale for assigning the Europe and External Affairs portfolio to McConnell.12 In some respects the article’s aspirational theme was understandable. The interview related to his recent trip to the USA, during which he had an audience with President Bush, during the Tartan Day celebrations. Tartan Day was a recent innovation that was intended to emulate the success of St Patrick’s Day in America. In so doing, it was hoped that Scotland could re-connect with its diaspora there, and thereby potentially benefit both in terms of tourism and trade. The issue of commerce was particularly salient for the Executive, because at the end of the day it had to meet the electorate’s expectations over jobs and the economy. Thus, economic development and the promotion of inward investment mattered a great deal. McLeish therefore proposed that Scottish officials should be seconded to UK embassies in order to promote Scotland. But some sections of the media took this to mean that Scotland was setting up its own ‘diplomatic corps’ and therefore risked flouting the reserved status of foreign affairs.13 By now, both MPs at Westminster and officials at the Foreign office were airing their fears to the media. MPs were concerned that the Scottish Executive had strayed onto their turf and officials in Whitehall accused the First Minister of being a ‘loose cannon’.14 By the autumn of 2001, McLeish’s period in office came to an abrupt end when he resigned over financial irregularities concerning matters relating to his Westminster constituency office. He had been First Minister for only a year and thus when McConnell succeeded him, he was the third post-holder in just three years. When McConnell became First Minister, there were yet further changes to the European portfolio. There was no longer to be a minister and a deputy with responsibility for European and External Affairs. Instead this fell within the remit of the First Minister and his deputy Jim Wallace. One of McConnell’s early actions was to rescind the plan to second officials to UK embassies, although one individual was retained in Washington. He also stressed that the Executive should be ‘making

102 2003: a Scottish foreign policy? sure that what the UK government was doing was operating in Scotland’s interests’.15 Sitting alongside Peter Hain, who was then the UK minister for Europe, McConnell explained at a meeting during November 2001 that the reference to the ECJ over subsidiarity (as set out in the Flanders Declaration) should not be determined by the court but by politicians.16 Thus, when Scotland signed the ‘Liège Resolution’ in that same month, this attracted little if any attention in Scotland or London because the salience of the ECJ had been further watered down. During the next twelve months more emphasis was placed on Scotland’s relations with the EU than with the wider world. In part, this was presumably to lower the temperature between the Executive and London. It was also because the EU itself stood on the cusp on further reform in readiness for the coming enlargement. For some months now, the Executive had been involved in consultation exercises with the European Commission over the future of Europe. McConnell had been involved with this personally for some while, and the Scottish position was very much a continuation of Wallace’s demands at Barcelona in November 2000 – namely that the regions, especially those with legislative powers, should have a greater role in the formulation of EU policies. In March 2001 the Executive submitted a joint paper with COSLA to the Commission in advance of its White Paper on governance. It called on the Commission to ‘find better ways of engaging with regional and local organisations in the EU decision-making process’ and that ‘Scotland and the other regions with legislative powers should have a greater role’. But it included the caveat that it rested with the individual Member State ‘to decide the internal allocation of competencies’. It also called for the application of the principle of subsidiarity in the sense that where possible decisions should be taken at the lowest level.17 Over the next couple of years subsidiarity was to become a key issue for the Executive. The following year, McConnell promulgated the mantra that Scotland had to influence EU policy at its source. He observed: In Europe there is a different context. A substantial part of the devolved responsibilities are affected by European legislation, so we need to influence that legislation and influence it directly. That is a position we have laid out very clearly. We want to make sure that we can influence European legislation at its source [. . .] If we are going to have a mature devolved settlement within the UK we are going to have to discuss these issues.18 By 2002, McConnell had become one of Scotland’s alternate members of the CoR and he helped draft an opinion by the CoR entitled ‘More democracy transparency and efficiency in the European Union’. He demanded that there should be ‘a series of measures to open up European decision-making’ including an ‘early dialogue with the Commission and implementing authorities’ thus re-iterating Wallace’s earlier line at Barcelona. He also suggested that the Council should meet in public ‘when agreeing legislation’ and that there ‘should be greater use of framework legislation leaving the detail to implementing authorities’.19 With the Convention on the future of the EU underway, McConnell returned to the issue of subsidiarity.

2003: a Scottish foreign policy? 103 He called for a new subsidiarity Council, the task of which was to ‘stop the EU from interfering in areas better handled at a more local level’. Its members would be drawn from ‘national and regional parliaments’.20 But when he drafted a report for the CoR’s Commission for Constitutional Affairs and Governance on September 7th 2002, he was cautious not to cross the line as to how subsidiarity could be policed. The submission included the proviso that from the ‘Scottish government’s’ perspective, ‘judgements on subsidiarity were a political issue’.21 Yet McConnell faced criticism for failing to ensure that Scotland was directly represented in the Convention, the task of which was to prepare a draft treaty in advance of the 2003 IGC on the EU’s future. Struan Stevenson MEP (Conservative) called it a ‘stitch up’, whilst Richard Lochhead MSP (SNP), asked if the Länder had a representative there, why didn’t Scotland?22 In the event, Sir Neil MacCormick MEP (SNP) did participate, albeit as an alternate member. However, for the most part the Executive’s links with the Convention were provided by the UK government. Wallace explained to MSPs on the European and External Relations Committee how this would work. He said: The mechanisms are to ensure that the channels of communication are open – not least by using the government intranet – and that information can be readily exchanged between the UK Government and the devolved administrations, including those in Wales and Northern Ireland. The Secretary of State for Foreign and Commonwealth Affairs has given his support to ensuring that the devolved Administrations are properly consulted on the UK Government’s position. As part of that process, he wants to visit Cardiff, Belfast and Edinburgh to talk to ministers, and more widely, to gauge views on the subject. There is an indication that the devolved Administrations want to ensure that they talk to one another not only as part of the formal joint ministerial committee on Europe, but as part of the discussions in the margins.23 When asked how the Executive proposed to inform the parliament and the committee about ‘its success or otherwise in feeding in views, directly or indirectly, to the Convention’, Wallace was sanguine. He described the Convention as ‘something of a moveable feast’ but that MSPs would have the opportunity to put questions and air their views ‘as and when’. When asked whether or not someone from the Executive was present in Peter Hain’s delegation to the Convention the previous week, Wallace said that there was not but he believed observers were there.24 More than likely they were from Scotland House in Brussels (though Wallace was uncertain about this). Scotland House has not been without its detractors, however. Scotland House was established as a result of devolution. Its primary role was to provide high-grade intelligence for the Executive on events in the EU, an allied remit being to promote Scotland’s interests in Europe. During September 2002, however, Scottish MEPs were concerned about its ‘low profile’. Labour MEP Bill Miller commented that, ‘Basically they are bag carrying for ministers at

104 2003: a Scottish foreign policy? the moment. I think they should be more hands-on in dealing with the Commission and politicians.’ David Martin MEP, a senior vice president of the European parliament, was also scathing. He observed, that the ‘civil service half [the other half being Scotland Europa], has a tendency to be too enthralled with the UK representation in Brussels and to accept the UK line when perhaps they might be tougher in presenting the Scottish case’.25 This dilemma applied to the Executive in its entirety. It may have been a devolved administration but, given internal constitutional constraints, it had no option but to work closely with the UK government and its organs if it was to realise substantive influence within the Council. Thus, as Jeffery also observed, although Scotland was the only territory in the EU to secure individual access to the Council (as opposed say to the Länder or Belgian SNEs which enjoyed collective access), such involvement merited ‘initial circumspection’ (Jeffery 1998: 10–11). That is not to say Scottish ministers never attended the Council. They did. Responding to criticism that Scottish ministers had failed to participate in the Council, Wallace commented that to date (i.e. the summer of 2002) Scottish ministers had taken part in 28 sessions, which represented 10 per cent of all such meetings. He then argued, that where there was no distinctive Scottish interest, there was no reason to attend. Where that was so, a minister from the UK government would still have been present anyway.26 In January 2003, Peter Hain, the UK minister, submitted a position paper to the Convention on behalf of the UK and the devolved administrations. It included the demand that ‘at the minimum’ the Commission ‘should consult regions with devolved legislative powers’ and ‘that it should provide explanatory memoranda showing which bodies had been consulted at the pre-legislative stage’.27 This was to be the centre-piece of the Executive’s strategy regarding the Convention. During the parliament’s first four-year term, JMC Europe convened on seven occasions, and no doubt the Convention formed a part of the respective ministers’ deliberations.28 But due to the confidentiality surrounding inter-governmental relations between Scotland and the UK regarding foreign affairs, it is difficult to glean how far the UK government actually promoted Scotland’s interests in advance of the IGC. Indeed, it would appear that from time to time there have been differences between London and the devolved administrations over EU policy. For instance, Trench observed that a good number of inter-ministerial meetings ‘took place outside the JMC framework’, one such example being agricultural ministers concerning the CAP. An explanation was that they ‘usually agree with each other but disagree, often profoundly, with the UK government line’. By meeting informally, at the instigation of the devolved administrations, the latter avoided backing ‘the UK government into a corner which in the longer term would have been counterproductive’ (Trench 2003: 147). Nonetheless, it was clear from the perspective of the Scottish Executive, regardless of the channels offered by the UK government, it not only needed to have a more direct relationship with the EU, so that it could influence policy ‘at its source’, the EU itself needed to involve regions with legislative powers more fully.

2003: a Scottish foreign policy? 105

The Executive’s international agenda The Executive’s policy on external relations has also evolved incrementally. In the immediate aftermath of devolution, its foreign affairs agenda related primarily to the EU.29 But by March 2002, it also focused increasingly on the promotion of international interests.30 In some respects the international dimension was by no means breaking new ground; as mentioned above, Wallace had already referred to globalisation in a speech in Barcelona during November 2000; shortly thereafter, Tartan Day had been established and McConnell’s portfolio now included external affairs.31 But McConnell had been quick to stress that his appointment under McLeish should not be taken to imply that Scotland possessed its own foreign policy. All the same, it was also clear that the Executive could not shy away from an involvement in external matters. He told MSPs on the European and External Relations Committee in December 2000:32 It is also important that we recognise that our external relationships, as a Parliament and as an Executive, are not just with the European Union. We have a relationship with the EU, its Member States and the regions in them, but we also have relationships with other external bodies. The inclusion of Europe and external affairs in my ministerial title makes it clear that we have relationships with Westminster, with Ireland and with the other devolved Administrations. Occasional relationships may also be required in the Commonwealth. Those relationships are clearly linked to our devolved responsibilities. They are not an attempt to develop some sort of alternative foreign policy, but are a clear indication that it is not possible to carry on government in Scotland without having some links with colleagues in the rest of the world. That is what we seek to do. We cannot stand on the economic sidelines of north-west Europe and not develop the sort of trading and political links that will help the Scottish economy. That means working closely with those regions with which we have always had a close connection, such as the Scandinavian or Nordic countries, Spain, Germany, Belgium and elsewhere.33 Much of what McConnell told MSPs back in 2000 has now come to pass. Over that last few years the Executive has concluded bilateral agreements with other territories and it has conducted formal visits to third countries. These developments were partly designed to boost trade, they also enabled all sides to exchange ideas on best practice and they laid the foundations for further collaboration. For example, the Scottish Executive and the government of Catalonia signed a protocol of co-operation on 3 May 2002. A few days later McConnell and Tuscan president Claudio Martini ‘agreed to build closer links on issues such as economic development and arts and culture’.34 In October of that same year, Scottish ministers and officials visited Sweden. According to Wallace the programme was designed to promote the Scottish Executive’s business objectives in Sweden (it being one of Scotland’s largest markets for manufacturing exports).35

106 2003: a Scottish foreign policy? During November a co-operation agreement was signed with Tuscany and the two territories signed an Action Plan the following June. One issue that arose, however, was whether bilateral agreements such as these had any legal standing. Tavish Scott, a minister in the Executive explained in a written parliamentary answer that, ‘neither the Action Plan nor the Agreement is a legally binding document and there are no penalties for non-compliance’.36 Hence, agreements such as these cannot be categorised as being akin to quasi-treaties. McConnell has also participated in global fora, such as the ‘Earth Summit’ on the Environment in South Africa, where he was due to speak at a WWF seminar. During his visit, it was also announced that Scotland would be twinned with the Eastern Cape in South Africa.37 From a political perspective the results were mixed. It enabled him to demonstrate that Scotland (and its senior politicians) could play a role on the global stage without falling foul of the fact that international affairs was reserved to Westminster. On the downside, sections of the media reported that he had ‘attacked’ the US President over the latter’s failure to attend the summit.38 That raised the spectre that he risked straying into reserved areas, by so doing. Whilst he was there he also talked up the need for Scots to be ‘internationalist in outlook’39 – something which was to become the leitmotif of his first period in office. The significance of these various developments should not be over-stated. For the most part they were concerned primarily with functional rather than overtly political matters (although the protocol with Catalonia referred to ‘jointly contributing to the regions’ role in Europe’). Even so, the promotion of trade, capitalising on the diaspora, and forging new links with other territories were all indicative that Scotland’s foreign affairs strategy was not focused simply on the EU. In the aftermath of devolution, Scotland had indeed become more ‘internationalist in outlook’. Given that within just four years, a distinctively Scottish foreign affairs agenda had evolved, the future promises much. In the meantime Scotland has not taken the ‘nationalist road’, so feared by Mr Dewar. Instead, McConnell has pursued an ‘internationalist’ one, thereby somewhat emulating the internationalism so espoused by the SNP.

The European and external relations committee As far as foreign affairs is concerned, Holyrood faced a daunting task. Even parliaments at the state level had faced an up-hill struggle in overseeing how their governments dealt with the EU. Their influence over EU decision-making was debatable, though the Scandinavians have enjoyed more success in this than most.40 As a sub-state parliament Holyrood risked having an even more marginal role.41 However, even before the parliament was established in 1999, there was the realisation that Holyrood could not avoid an interest in European matters. The Consultative Steering Group, the body responsible for formulating the parliament’s structures and procedures, therefore recommended that it should have its own European committee. That duly came to pass after Holyrood convened in 1999. It met 69 times during the parliament’s first four-year term, during which time it

2003: a Scottish foreign policy? 107 received 4,100 documents. It published 13 own initiative inquiries (e.g. on the structural Funds and on Scotland’s representation in the EU) and individual MSPs on the committee produced a further six reports (one such being on an EU Charter of Fundamental Rights).42 During its early years, the committee underwent something of a transformation both in terms of its remit and its procedures. When it first convened, the committee was simply called the ‘European Committee’ and its remit was thus restricted to the EU.43 In 2003 its remit was extended to include external relations.44 In the main this was a reflection that the Executive’s foreign affairs agenda was no longer confined to the EU. It was also the result of a growing number of delegations and statesmen who visited the parliament, something which usually involved the committee. Scottish ministers regularly appeared before the committee and from time to time that yielded positive results. Yet MSPs faced the Herculean task of holding the Executive to account when Scotland was for the most part only indirectly represented in the Council. The same could be said of their attempts to influence the formulation of the UK position on EU policy. During the committee’s early days, especially, MSPs therefore found themselves on a steep learning curve. For instance, when the committee first convened, there was some confusion over where exactly it would send its opinions. MSPs initially expected that when the committee reached an opinion on a particular EU initiative, it would then be despatched to the relevant UK minister who would be leading the UK delegation at the Council. But it was immediately apparent that this was not to be. Instead it appeared that any opinion would be sent the House of Commons European Scrutiny Committee. In practice, this system failed to work successfully. Primarily, that was due to the short time frame between the Commission issuing a legislative proposal and a decision being taken in the Council (Wright c2004). However, the European committee at Holyrood developed a good working relationship with its counterpart in the Commons, so enabling them to exchange information. That apart, the Holyrood committee’s views would be despatched to the Executive, where ministers could then act upon them. If it so wished, the parliament itself could also hold a plenary debate on an issue of political topicality, or in response to one of the committee’s periodic reports. One of the earliest challenges which confronted MSPs was the influx of material emanating from the EU. As the committee met only every two weeks, it risked being overwhelmed by draft EU legislation, with the result that it might inadvertently overlook issues which mattered a great deal to Scotland and concentrate instead on those which were of less consequence. MSPs therefore agreed on a sifting process which was designed to weed out those proposals which were of little or no relevance to Scotland, whilst officials set up an informal network, the purpose of which was to identify those proposals which were of potential interest to the committee. The network had mixed results but it mattered less in time, as the parliament’s own research centre recruited a dedicated EU specialist. Although that individual’s work related to the parliament as whole, it was a valuable asset, as far as the committee’s intelligence-gathering capacity was concerned. Over time,

108 2003: a Scottish foreign policy? however, it became increasingly clear that scrutinising draft EU legislation was both time-consuming and resource intensive. Potentially it could also be ineffective. In the main, this was because for the most part by the time draft legislation was despatched by the Commission, it was too late in the day for Holyrood to influence it substantively, even if it had wished to. Thus, it risked appearing overly reactive (Heggie 2003: 129). The net result was that scrutiny was subsequently accorded a slightly lower priority. MSPs then turned their attention to overseeing the implementation of EU policy in Scotland. An underlying rationale was that if the Executive failed to implement EU policy correctly, it could incur a fine from the EU, which would then be borne by the taxpayer. However, the threat remained that the committee appeared too reactive and somewhat irrelevant. In short, during its formative years it ran the risk of becoming little more than a ‘talking shop’ with MSPs acting as ‘glorified lobbyists’.45 Indeed, Taylor believed that the ‘parliament through its European Committee’ was ‘unable to cope in the early days’ – the committee was ‘swamped by the task’ and there had ‘not been sufficient preparation for the scope of its task’. He also observed that there had been ‘political tensions’ within the committee and it appeared that the Executive ‘distrusted’ the parliament’s European ambitions, whilst ‘UK politicians were reluctant to co-operate’ with it. Although Taylor thought that there was ‘substance to these complaints’ he also believed that MSPs themselves were ‘culpable’ by virtue of their ‘inexperience’. They simply did not possess a sufficiently sizeable corpus of knowledge about how the EU really worked, or where ‘power truly lies’ (Taylor 2002: 274). In some respects Taylor’s criticisms of its early years were understandable but such difficulties were unsurprising, given the novelty of devolution. Certainly, the committee was rather overwhelmed for a while, as its members and officials set out to discover how best they could influence EU matters. MSPs too had their doubts. During 2001, a majority of those MSPs on the committee, who agreed to be interviewed by the author,46 believed that Holyrood should have had more influence over EU affairs. However, it should also be added that they thought that the committee did act as an effective ‘trip-wire’. Equally, when they were invited to appear before the committee, UK ministers declined to do so on the grounds that they were already accountable to Westminster and there was no need for duplication.47 However, things have improved since Taylor’s book was written. Peter Hain, as Minister for Europe did ‘address’ the committee in 2001 (as did his successor Dr Denis MacShane in January 2004), which in practice was tantamount to ‘appearing’ before it. That said, whether to do so or not rested in the hands of the individual UK minister. The claim that MSPs lacked experience over EU matters is open to question. When the committee first met in 1999, one of its members was Winnie Ewing, who had previously been the long-serving MEP for the Highlands and Islands. When its membership changed subsequently, Irene Oldfather, the new convener, had been a Scottish representative at the CoR. In addition John Home Robertson and Sarah Boyack both joined the committee after losing ministerial portfolios which included EU matters. So, some of its members, at least, would have had a good idea of how the EU worked.

2003: a Scottish foreign policy? 109 For its part, the Executive’s mistrust over the parliament’s involvement in European affairs was understandable, not least because the situation for civil servants had undergone a transformation thanks to devolution. Previously, ministers at the former Scottish Office spent a good part of their time in London leaving officials to get on with ‘running Scotland’. Brian Fitzpatrick, an advisor, who was once Dewar’s head of policy, was all too aware of the potential for ‘trouble’. He explained: There were certainly strong signs of a civil service that still saw itself as a colonial administration and only wished the politicians would disappear off to ‘London’ as in the past and let them get on with running the country. At the top of the tree, with a few notable exceptions, sat senior officials probably looking towards retirement packages and unwilling or unable to accept the political priorities of the administration. It was also clear that their emphasis was heavily on management. Combined with hostility to the input of ‘outsiders’, which for most purposes included ministers and advisers, trouble was almost inevitable.48 Now, however, Scottish ministers were for the most part situated in Edinburgh. But the greatest change was the parliament itself: officials now had to deal with another group of ‘outsiders’ – MSPs. The net result was that they would come under considerably more scrutiny than was the case hitherto. Questions would be asked by MSPs on the European and External Relations Committee about European matters which would not have been so frequently aired prior to 1999 at Westminster. As with many of Holyrood’s other committees, this aspect of their work merited relatively little interest in the media but the results could be extremely informative. That was particularly so when the European and External Relations Committee conducted inquiries. The committee’s inquiries have formed an important part of its work and in so doing it has ensured that the Executive’s handling of EU matters has attained greater transparency.49 For example, when the committee conducted an inquiry into Scottish representation in the EU, the work of Scotland House in Brussels came under intense scrutiny from MSPs, in part because there had been growing unease about its efficacy and its relationship with UKRep (see above). Likewise, when the committee held an inquiry into the structural Funds, one senior civil servant asked MSPs at the outset – ‘you aren’t going to ask me anything awkward are you?’50 That may have been slightly disingenuous on his part but he too subsequently explained, in some depth, the Executive’s role in the funding process. In the final analysis, however, considerably more information about Scotland’s government and the EU is publicly available thanks to the parliament and its committee than was the case before 1999. The committee’s inquiries have also ensured that there has been a degree of focus on issues of strategic importance to Scotland. Nowhere was this more so than its report into the future governance of the EU. In some respects the ensuing report appeared to be little more than a wish list. It called for direct access to the ECJ, a scrutiny reserve on Scottish ministers51 and

110 2003: a Scottish foreign policy? the automatic entitlement of the latter to attend the Council when devolved matters were being dealt with. It also suggested that ‘consideration be given’ for a Regional Affairs Council.52 As far as the latter was concerned, the objective was the establishment of an additional format of the Council. Where it dealt with matters which related to regional competencies, presumably then ministers from regions with legislative powers would be entitled to vote. Clearly this was not going to come to pass, not least because the Council already met in too many formats and also because the regions themselves were too diverse. But it did act as a declaration of principle. Arguably, the demand was a rational one. Thanks to their constitutional arrangements, both the Belgian SNEs and the Länder had secured the right of direct access to the Council where their exclusive competencies were affected. Scotland did not enjoy such status, so the only alternative from the committee’s perspective was to further ‘regionalise’ the Council itself. On 30 January 2003 Wallace responded to some of the points raised in the committee’s report. As far as the proposed Regional Affairs Council was concerned, the Executive ‘was not fully convinced of the merits’, not least because the Member States were unlikely to support it. Moreover, the Executive argued that such a body would ‘only have a consultative role’ and it risked ‘overlapping with the CoR’. Wallace also rejected the proposal for direct access to the ECJ as ‘this was a political matter which could best be dealt with at an early stage in the legislative process’. However, the Executive did see some merit in the CoR securing access to the court ‘as a long term measure’.53 Effectively, this was a reiteration of the Executive’s position on the ECJ and effectively it drew a line under the issue. The committee also established a number of links with external bodies. Officials and the convener participated in a pan-UK forum along with their colleagues from the other legislatures.54 The committee has also concluded agreements with of some its counterparts in the EU. For example, it became a member of the newly established Network of Regional Parliamentary European Committees (NORPEC) in September 2002. There were two sides to this. Hitherto, the committee had attempted to join COSAC, a pan-EU body consisting of ‘national’ parliaments. But this was rebuffed. NORPEC thus provided the regions with their own forum, albeit that it remains to be seen how this will develop. Secondly, it was hoped that such a body could exercise a degree of democratic oversight over those territorial administrations which belonged to RegLeg. It was also decided that the parliament would have its own representative in Brussels, and in so doing it was expected that the committee would be better informed. In sum, there have been times when the committee has secured concessions from the Executive and other times not. For instance, Scottish ministers now provide briefings to MSPs before and after those Council meetings which were of direct relevance to Scotland. The same applied to JMC Europe. Hence, during the first four-year term there had been something of a synergy between the Executive and the committee, in part because of the willingness of Scottish ministers to respond favourably to the committee’s demands for a greater scrutiny of the Executive’s international agenda. Consequently, Scotland’s foreign affairs strategy postdevolution is rather more transparent than was the case prior to 1999.

2003: a Scottish foreign policy? 111

The parliament and international affairs During the autumn of 1999 officials in London and Edinburgh considered that it was unlikely that MSPs would be much involved in foreign affairs on the supposition that they would focus instead on domestic matters. 55 Yet in the widest sense the parliament has not shrunk from developing its own international role. This was perhaps most evident when foreign dignitaries visited Scotland. For example, when he undertook a state visit to the UK, President Putin met the First Minister and MSPs in Edinburgh, whilst senior figures from the EU have also been regular visitors to the parliament. Much of this has had the Foreign Office’s blessing no doubt, as it was keen to demonstrate to an international audience that devolution had been a success (Taylor 2002: 279). On other occasions, however, it may have been less well disposed towards Holyrood when debates have been held not just on the EU but foreign affairs more generally. After the USA was attacked by terrorists on 11 September 2001, MSPs could not avoid discussing it (the parliament being in session). Weeks later, when American forces launched retaliatory strikes against the Taliban in Afghanistan, the parliament was in recess and John Swinney, the SNP’s leader asked for it to be recalled. The Presiding Officer56 declined, initially, but the matter was debated at a plenary session in October 2001. This was justified by Swinney, by virtue of the ramifications for Scotland. These included, the effect on domestic security, the weakening of economic confidence and its effects on Scottish manufacturing, the ramifications for travel and tourism, and the impact on the Muslim community. Thus even though foreign affairs was reserved to Westminster, it was appreciated that it was perfectly appropriate for issues such as these to be debated by MSPs. Two years later when war with Iraq looked imminent, MSPs held a plenary debate on the issue. As with the earlier one on Afghanistan, its consequences should not be exaggerated because the outcome had no immediate effect on the UK’s preparations for war. Yet in both instances, MSPs had something of a freer hand in organising a debate on the subject compared to their colleagues at Westminster, who for some while were denied a substantive discussion on these matters. More particularly, the debate on Iraq did bring into relief the limited powers of the parliament concerning international matters. During the ensuing session, Tom McCabe (who led the debate and who was then a former minister) made a number of comments which confirmed that the parliament was entitled to ‘discuss’ such issues (although he also complained that the SNP was using the debate as an opportunity to further its own agenda).57 McConnell, for his part, was present, but declined to speak as the issues concerned were reserved. That may be so, but if the parliament had agreed with the SNP motion condemning military action it would have called into question the legitimacy of the UK government pursuing such a policy. The same applies to foreign affairs generally. A senior figure in the former Scottish Office observed: If we see a point where Scotland takes a different line to the UK, London will have to sit up and take notice based on past experience. You need to be aware

112 2003: a Scottish foreign policy? of the cliché that the UK was the best-organised state in the EU. We will lose that, whereas the Germans have constitutional clarity. Take Kosovo as an example. If the parliament had been sitting, there might have been a debate on this and it could have passed a resolution condemning the actions of the UK government. That would have been a major international story and it would have been damaging to the UK. Whilst the parliament has legislative competence its political clout is far greater. For instance, if we had a rerun of Lockerbie would the emergency debate be held at Edinburgh or London?58 So, it could be said that, regardless of its reserved status, the situation has changed to no small extent concerning Scotland’s involvement in international matters, despite Holyrood’s autonomy being circumscribed by the current constitutional arrangement.

Scotland and Ireland: a new relationship? Although foreign affairs is a reserved matter, Scotland is entitled to conduct bilateral relations with the Republic of Ireland.59 Thus, for the first time in three centuries it can develop its own links with another country without the mediation of the UK government. The ramifications of this should not be over-stated however. This is partly because, for the present at least, there is little incentive for the Scottish Executive to engage in extensive diplomacy with Dublin, as this is already undertaken by the UK government. Moreover, the Executive is currently governed by parties which are inherently unionist (i.e. in favour of the Union with the UK). In addition, Scotland and Ireland already enjoy a myriad of inter-connections, thanks in part to migration and the Celtic origins of sections of Scottish society (it is estimated that 65,000 holders of Irish passports resided in Scotland during 2000). Ireland also stands twelfth in the top forty of Scotland’s export markets (Murray 2000: 130). So it could be suggested that the inter-connections between Scotland and Ireland are already very extensive and there is little need for the two countries to develop a deeper political relationship. Even so, the creation of the British–Irish Council does offer an additional platform for collaboration and consultation. The British–Irish Council (BIC) was a by-product of the Belfast Peace Agreement in 1998. It was designed to placate Unionists in Northern Ireland who were worried that the creation of a North–South Council would weaken the Province’s bonds with the rest of the UK. Consequently in the final negotiations over the Agreement it was decided that the BIC should be established. Its constituent members include Scotland, Ireland, the UK government, Wales, Northern Ireland and the Channel Isles. It has enjoyed a relatively low profile to date, in part because of the suspension of devolution for Northern Ireland and also because it dealt with ‘low’ political issues such as co-operation on drug abuse. Nonetheless, despite the suspension of devolution to Northern Ireland, collaboration between officials has mushroomed during the last year or so (Trench 2003: 149). Moreover, in the longer term it is of potential significance not least because the idea of a Council of the Isles surfaced from within the SNP in 1996, as something of a

2003: a Scottish foreign policy? 113 successor to the UK. Akin to the Nordic Council, the BIC could therefore act as a forum for the constituent parts of the British Isles after Scotland had seceded from the UK (Murray 2000, see also MacCormick 1999: 196–199). In the meantime, however, Scotland remains within the UK but that is not to say that its relations with Ireland will remain unaltered post 1999. In June 1999, a senior official at the former Scottish Office believed that although his colleagues had their doubts, the BIC might just conceivably have far-reaching consequences. He observed: The Irish are very alive to this. The civil service does not see it as an opportunity but if it did take off, Scotland could open an embassy in Ireland under the auspices of its status as a council member – albeit that it would not be called an embassy. Interestingly, Flanders has already expressed an interest in becoming involved in the BIC. In the EU context the Irish may try to influence the UK via us.60 Indeed, within a year of Holyrood’s establishment, it was evident that Ireland viewed Scotland’s new circumstance with great interest. For example, when Donald Dewar undertook a formal visit to Dublin, it had something of the aura of a state visit. In so doing it symbolised change for the future. An Irish diplomat, who was then based in Edinburgh, explained subsequently: Our intention is to build new links between Ireland and Scotland – the Scottish Parliament is a new centre of political influence. Equally our relationship with the UK is the most important regarding foreign countries, so any change within the UK is of supreme significance to us. We therefore opened up a consulate in Edinburgh. The other reason is the British–Irish agreement. Our relationship with Scotland is not just out of politeness – it is a political one due to the BIC. The Good Friday Agreement introduced Scotland into what was previously a UK/Irish dialogue. We will now have three interlocutors – we cannot be other than fascinated by political change. Therefore, what happens here is more than a little interesting.61 Whilst Irish aspirations have been high, the relationship between the two governments has not been without its setbacks. When Bertie Ahern, the Taoiseach, was invited to plant a tree in Lanarkshire as a memorial to victims of the Irish famine, it had to be delayed after a Scottish MP (and an aide to the then Scottish Secretary of State) warned that it could lead to sectarian unrest. The MP subsequently resigned, as aide, following the ensueing furore in Dublin.62 Although the consequences of this should not be exaggerated, given the sound relations between the two countries, and the fact that the concern was voiced by an MP rather than an MSP, nevertheless, the issue of Irish–Scottish relations is potentially sensitive for all sides of the political spectrum. It remains to be seen just how the relationship between Scotland and the South and North of Ireland will evolve in the years to come.

114 2003: a Scottish foreign policy?

A Scottish foreign policy? Whether the Executive’s external affairs agenda actually equates to ‘a Scottish Foreign policy’ is largely a matter of semantics.63 Scotland does not have its own diplomats (if its officials in Washington, UKRep and Scotland House are excluded), it cannot conclude treaties with third countries, it cannot declare war, nor is it automatically entitled to a seat on international bodies such as the UN. Thus in terms of ‘high politics’ it does not have a foreign policy at all. But as is the case with other territories, especially those with constitutional and/or legislative powers, it does have substantive overseas interests, which are not purely restricted to the EU. Given the distinctiveness of those interests (viz the Scottish diaspora, tourism, finance, manufacturing, fishing, oil, whisky, agriculture and the environment), it would be surprising if it did not possess a foreign policy of sorts, in the ‘low politics’ sense. That rather contrasts with the parliament, which on a few occasions has strayed into areas of ‘high politics’. The debates on Afghanistan and Iraq are such examples – albeit that this was partially prompted by the SNP, who amongst other things would presumably have been intent on pushing at the margins of the parliament’s powers. Equally, Holyrood and the Executive sailed a slightly different tack when confronted with the ‘Europeanisation of Scottish Domestic Policy’. The Executive attempted to ‘rein in the EU’ by proposing a subsidiarity Council. The European and External Relations Committee focused more on the desirability of the Executive securing direct access to the EU’s institutions. The right to bring cases before the ECJ and the call for a Regional Affairs Council were two such examples. The fact that both the parliament and the Executive called for greater influence in the EU within a couple of years of Holyrood’s creation should not be belittled either. In so doing, it implied that the country had insufficient autonomy vis-à-vis the EU. However, whether the EU possesses the capacity to fulfil such an expectation, without further constitutional reform in the UK, is another matter entirely. It may well be that the Executive’s overtures will remain unrequited. As was clear from the previous chapter, some territorial governments had little liking for ad hoc and informal arrangements of the kind that currently prevail in the UK. They were eventually replaced by formal mechanisms which provided both the Länder and Belgian SNEs with certain entitlements not only over their Federal government’s formulation of EU policy but also in relation to direct access to the Council, where their competencies were so affected. For the Spanish ACs, which appear to be rather worse off than Scotland in terms of their influence over EU matters (both internally and externally), the picture was mixed. Some ACs capitalised on connections with the governing parties at the centre, others such as the Basques appeared to have had a more conflictual relationship with their state government. In contrast to the Basques, conflict between Edinburgh and London has been avoided where at all possible. Whilst all three First Ministers have had an interest in foreign affairs, McConnell in particular has shown the most enthusiasm for involving himself in international matters, thereby emulating Jordi Pujol of Catalonia. But he was well aware that

2003: a Scottish foreign policy? 115 this would be something of a tightrope walk. With his eye on the bigger picture, he needed to demonstrate to Scots that 1999 had made a marked difference to their nation’s standing in the international arena. But he also had no wish to follow in McLeish’s footsteps by pursuing any scheme which gave the appearance that his administration was about to encroach into those high politics elements of foreign relations which were the preserve of Westminster. Reassuring London was therefore paramount. He and Wallace therefore adopted the mantra that any justification for the Executive’s involvement in foreign affairs was dependent on it being related to those matters which were devolved to Scotland. More particularly, by constantly talking up the union with the UK as the means through which Scotland could best maximise its global influence, despite the fact that Scotland was developing its own distinctive foreign policy, this ensured that potential critics in London were assuaged. The outcome was that the Scots appeared to have secured the best of both worlds. That said, foreign affairs remains potentially a poisoned chalice, whoever is First Minister. It is difficult to foresee that it will not be a source of tension between Edinburgh and London one day. That this has not come to pass during the first four-year term can also be attributed to the fact that the same parties have been in office in London and in Edinburgh. Or more accurately, Labour is the dominant coalition partner in Scotland whilst the Liberal Democrats, their partners, were supporters of devolution itself. The parliament’s first term was therefore notable for the absence of public spats between the two tiers of government. In part that may have been because Scotland’s First Ministers have not had much time to let the dust settle under their feet before their period in office ceased – McConnell being something of an exception. Equally, as the House of Lords noted, the relationship has been one of informality and goodwill. The governing parties in London and Edinburgh appreciated that devolution had to be seen to work successfully. So too did the Foreign Office. Whether such goodwill would persist when different parties are in power remains to be seen. Perhaps it will only be at that point in time that the robustness of the current pragmatic arrangement will be put under the kind of pressures which helped extinguish its predecessor. More particularly, goodwill might one day prove to be an elusive soul-mate if national fishing fleets can be cut on Brussels say so and it is plain for everyone to see that all Scottish ministers can do about it is whistle in the wind. In the meantime, it is clear that Scotland has distinct foreign interests, which are by no means merely restricted to the EU. Within a couple of years of Holyrood’s formation both the Executive and the parliament’s committee had incorporated an external affairs role in their respective remits. In so doing it affirms that there is an international dimension to Scottish politics and that this is distinct to that of the UK government. By acting as it has done during the first parliamentary term, Scotland’s political leadership has ensured that the country’s international profile has risen as a result. There is also greater democratic accountability concerning Scotland’s foreign affairs agenda than was the case prior to 1999. Given the constitutional constraints and the political complexion of the Executive itself, it is difficult to discern whether the Executive or parliament could have done more than

116 2003: a Scottish foreign policy? they did during Holyrood’s first term. Nonetheless, autonomy remains a problem. On the one hand it could be inferred that the UK is no longer necessarily the sole intermediary between Scotland and the international arena because the Executive has involved itself directly in foreign affairs. That is so. But Scottish autonomy within that arena is somewhat ephemeral. For instance, as far as the Council is concerned, the UK government remains the gatekeeper. Moreover, as we shall see in the next chapter, from the perspective of some in the Scottish fishing sector, Scotland continues to remain overly dependent on London at critical points in EU policy-making.

9

Functionalism, subsidiarity and the denizen of the deep

The main danger is that of Common Access to our waters being available to Continental vessels. Any large increase in effort around our coasts would lead to over-fishing. If conservation regulations were then introduced, it would lead to a reduction in the catches taken by our own inshore fleet. (Scottish Office Internal Memorandum 1971)1

Of all the EU’s policies, the Common Fisheries Policy (CFP) has evoked the greatest passions amongst sections of Scottish society. When the Council meets each December to agree the coming year’s total allowable catches, the fishermen’s income and sometimes their very employment are in the balance. 2 The bulk of the fishing communities lie to the north and east of Scotland, although there are also significant elements of the industry in the Highlands and Islands. Traditionally, the bulk of UK catches have been in Scottish fishing grounds, and some parts of Scotland are heavily dependent on fishing. During the CFP’s early years, the fishermen enjoyed widespread public support but in recent decades, as stocks of fish have plummeted, alarm has mounted over its effects on the marine eco-system (see, for example, Holden c1991). In some quarters, therefore, the CFP has been deemed a failure, but there is little consensus on the alternative, because functionally at least, some form of international collaboration appears the optimum means of managing the fishing sector. When the EU agreed its first fisheries regulations in 1970 there was no fisheries policy as such. The CFP’s legal base originated from Articles 38 and 39 of the 1957 EEC Treaty, which related primarily to agriculture. Article 38 stated: The common market shall extend to agriculture and trade in agricultural products. ‘Agricultural products’ means the products of the soil, of stock, farming and of fisheries and products of first-stage processing directly related to these products. The 1970 regulation (EEC 2141/70) introduced two key principles: fish were a common resource and there should be open access within the waters of the Member States. The open access principle was based on the EU’s commitment to a single

118 Functionalism and subsidiarity market, whilst the notion that fish were a common resource stemmed from the functional argument that fish spawned in the waters of one Member State, they could then migrate and be caught elsewhere. Hence, it was claimed that no single Member State could lay claim to the sole ownership of fish. Hitherto, fisheries had enjoyed mixed fortunes. Whilst UK waters contained some of the EU’s most productive fishing grounds there had been collapses in stocks from time to time. One such example was the herring industry in the 1970s. Equally as worrying, international conventions which were intended to give a degree of order to the conservation of fish stocks in international waters had failed to live up to their aims. Primarily this was because they were based on the principle of the ‘common good’. In theory the fishing effort would be reduced voluntarily when stocks were lower during a particular fishing season. The difficulty with this was that in practice, fishermen were reluctant to cease fishing if others continued to do so (Ranken 1984). So, it could therefore be supposed that an EU fishing policy had considerable merit, not least because such a policy would benefit from the exercise of supranational authority. It could also be argued, the CFP was a form of functional integration. Functional integration, as originally conceived, was a by-product of agreements between individual countries as a result of which they would be inter-connected via a ‘lattice work’ of inter-governmental organisations. Functionalists such as Mitrany believed that such a development, however, would not necessarily result in the emergence of some single supranational authority. Rather, this amounted to little more than technocratic collaboration in functional areas of policy.3 One such example was control of air transport. Yet, it could be claimed that fishing was not wholly dissimilar, save for the fact that by 1970, the EU had now come into existence. Although ministers in the Council took the key political decisions, much of the detailed work relating to policy-making was undertaken by technocrats in the European Commission. But despite its functionalist credentials, the CFP has become one of the EU’s most politicised policies during the last 30 years, and it has by no means been a popular policy in Scotland. When the UK acceded to the EU, the Scottish fishing industry was confronted with a fait accompli. As an applicant state, the UK had little option but to accept that the EU had acquired responsibility for the fisheries sector. Since it was not a Member State in 1970, neither the UK nor its fishing industry had played a significant part in the formulation of the regulation. However, the UK eventually secured a ten-year ‘derogation’ on open access in the accession treaty; it therefore retained a six to twelve mile coastal belt (Wright 1996). Nonetheless, that did little to dampen the twin perceptions within the industry that the CFP was fundamentally illegal and that the government had raised few objections because it had been more concerned with securing membership of the EU. By the mid-1970s as fish stocks declined, Iceland declared its own Economic Exclusion Zone (EEZ). The EEZ was only fifty miles at first but this was extended subsequently to 200 miles. Although the UK refused initially to recognise the legitimacy of Iceland’s claim and the Cod War followed, by 1976 the matter had

Functionalism and subsidiarity 119 been resolved in Iceland’s favour. However, Iceland was merely the first in a line of states that established national EEZs. It therefore soon became clear that the EU would have to act because of the threat of Russian and Polish vessels intensifying their fishing effort in the North Sea after they were denied access to their traditional grounds. Accordingly, ministers decided at a meeting in The Hague during 1976, that the EU states bordering the North Sea and the Atlantic should unilaterally declare their own EEZs from 1977, which would extend up to 200 miles or at a meridian point between them or third countries. This effectively created a ‘Community fishing zone’ in those waters. That coincided with the ‘Hague Resolution’. The Hague Resolution was of some significance to Scotland. Aside from the creation of the Community fishing zone, ministers also agreed that fishing fleets in the ‘North of Britain, Greenland and Ireland’ merited preferential treatment when regulations were being formulated under the CFP. This was referred to as the ‘Hague Preference’.4 Although the Hague Preference amounted to little more than a commitment in principle, potentially it was of value to Scottish fishermen. The EU had acknowledged that those regions, which were dependent on fishing, would get preferential treatment. They therefore stood to benefit when the quota system was introduced since they would be assigned a higher proportion of the allocations. Furthermore, if there were to be a reduction in the levels of annual catches, the Preference would also be taken into account. Indeed, that eventually came to pass.5 In the meantime negotiations continued over the CFP’s future, with the emphasis on the inception of a quota system. The revised CFP was finally agreed in January 1983 after Danish objections had been resolved. Most of the Scottish Fishermen’s Federation’s (SFF) aims were realised, albeit with a few modifications. The UK’s share of the quota was 37.3 per cent – that was greater than the SFF’s minimum of 36.07 per cent (Wright 1996). Whilst the difference appears small, nevertheless it was an achievement. For the moment at least the principles of open access and common resource were counterbalanced by a commitment to relative stability. The Council would agree a total allowable catch (TAC) for the different species of fish. The TAC would vary from year to year depending on fish stocks. Each Member State was then entitled to a fixed percentage share of the seven main species, thus ensuring the ‘relative stability’ of their individual fishing industries. The six to twelve mile derogation on the coastal zones was also to be retained, thereby circumscribing open access. This fell short of the SFF’s demands for a twelve-mile exclusive zone. But it did not lead to any far-reaching change in the previous arrangement; only those who had an historic right to be there under the London Convention of 1964 could fish in the six- to twelve-mile band. It ensured that vessels from other Member States were prevented from fishing right up to Scotland’s beaches, which otherwise could have been the outcome. Ministers also agreed to a ‘North of Scotland Box’, which from henceforth was known as the Shetland Box. The 1983 policy met with broad agreement, though some in the industry had their reservations. The Shetlanders, for example, were uneasy about the issue of Regional Fisheries Management and the policy in general.6 Furthermore in spite of the agreement on the CFP at the

120 Functionalism and subsidiarity beginning of 1983, the quotas remained the subject of negotiation until the end of the following December. However, the SFF remained intact and within a year or so the Shetlanders’ antagonism to the CFP was somewhat reduced. During the next decade the Scottish fishing sector had mixed fortunes. Within months of the 1983 agreement, the Danes secured a derogation on the by-catch of Norwegian pout. This was fiercely resisted by the SFF which eventually succeeded in over-turning the derogation, the following year. However, the issue was something of a turning point because the UK was apparently unwilling to use its veto under the so-called ‘Luxembourg Compromise’.7 From this point on, therefore, the SFF would be facing the combined might of the governments of the other Member States. By now (i.e. 1984) the UK government had secured its ‘rebate’ on its contributions to the EU at Fountainbleu and flying the flag for the fishing sector was arguably of less consequence for ministers save for those occasions where there was considerable interest in the media. When the CFP’s mid-term review was undertaken in 1992, the SFF was broadly satisfied with the outcome. The Shetland Box was retained, and so too was the principle of relative stability, which underpinned the quota system. However, it was also apparent that the worth of a quota arrangement was increasingly debatable. This was by no means new. For instance, an article in News from the British Trawling Industry had forewarned in 1978 that a conservation system based on quotas was inherently flawed: Quotas, by themselves, are a demonstrable failure since they depend for their efficacy on control where fish is landed. Many states lack both efficiency and integrity in exerting such control and the only solution is effort limitation exercising control where the fish are caught.8 The underlying defect, therefore, was that it did not restrict the amount of fish that were caught, only those which were landed. The net result was that it contributed to over-fishing; thus, the very device which lay at the CFP’s epicentre, was inherently defective. By the end of the 1980s concern mounted over fish stocks. There was by no means a consensus on this, however, with many in the industry arguing that scientific surveys did not accurately reflect the situation in the fishing grounds. Each autumn, following scientific advice, the Commission would formulate its proposals for the coming year’s TAC. This in turn was presented to the Council, which more often than not ignored the scientists’ recommendations, and opted for a larger figure, as a result of pressure from the fishermen. As evidence mounted about the fall in stocks, it became less tenable for the Council to ignore scientific advice and it became clear that there would have to be a downsizing of the sector. An underlying cause was ‘technology creep’. According to one senior figure in the Scottish industry, the catching capacity of the fleet was increasing by 3 to 4 per cent per annum due to technological advances.9 That meant that a proportion of the EU’s fleet had to be decommissioned if the sector was to survive in the long term. The EU therefore made monies available for decommissioning. If the

Functionalism and subsidiarity 121 decommissioning target was realised by a particular Member State’s industry, the latter stood to receive EU aid towards the modernisation of its remaining fleet. This proved to be rather contentious for the then UK government. Whilst the UK did establish a decommissioning scheme during the EU’s first Multi-Annual Guidance Programme (MAGP), this was abandoned in 1986 after an Audit Commission report had criticised its administration. Therefore for the period from 1987 to 1991, aside from Ireland, the UK was the only Member State that did not have a government-sponsored scheme for removing fishing vessels from its fleet.10 Conceivably, ministers were motivated by the desire to save public expenditure on the grounds that it made sense for the fleet to decline naturally. It also tallied with the Conservative’s free-market ideology: government should not subsidise commercial enterprise. That was self-evident in a ministerial statement to the House of Commons by John Gummer in December 1989. He warned MPs: Centralised planning and subsidy are certainly not going to produce satisfactory results. As my Rt. Hon. Friend, the Secretary of State for Scotland said in his speech to the House last week a decommissioning scheme would not be a sensible use of taxpayers’ money. Moreover, subsidising the construction and modernisation of fishing vessels serves in general to distort rather than encourage sensible investment decisions. In future, subject to clearance with the Commission in accordance with Article 92 of the Treaty of Rome, we plan to continue to grant aid essential safety improvements for fishing vessels. Otherwise, we intend to restrict vessel grant aid only to those cases where it is needed to back up European Community grant aid.11 The net effect, however, was that the Scottish fleet did not reduce in size12 (see table 9.1) and the government then had to look to other ways of reducing fishing effort. That led to a short-lived tie-up scheme. When the Council called on the UK to introduce domestic measures which would curtail haddock catches by 30 per cent during 1990,13 the government then Table 9.1 Scottish fishing vessels 1984, 1989–1994

Total

1984

1989

1990

1991

1992

1993

1994

2180

2424

2368

2375

2482

2895

2994

1184 469 469 35 23

1443 430 468 35 48

1415 409 461 38 45

1437 396 451 42 49

1542 391 448 47 54

1963 373 441 55 63

2102 346 427 56 63

By size Under 40⬘ 40⬘–59⬘9⬙ 60⬘–79⬘9⬙ 80⬘–109⬘9⬙ 110⬘ and over

Source: Table 13.17 Scottish Fishing Vessels, 1984, 1989 – 1994. The Scottish Office 1995, Scottish Abstract of Statistics 1995, Central Statistical Unit, Scottish Office

122 Functionalism and subsidiarity imposed a 92-day restriction scheme (per annum). Twelve months later the EU established its own tie-up scheme on those vessels which fished for haddock and cod. The only concession was that after negotiations in the Council, it was to be for only eight consecutive days per month rather than the figure of ten, which had originally been proposed. From 1992 the UK government faced renewed pressure to reduce the British fishing fleet. By effectively securing an opt-out from MAGP II it had simply put off decommissioning until another day and now that day had arrived. The Commission called for a commensurably large reduction in the fleet because of the lack of progress which had occurred during the previous few years. The government therefore had little option but to introduce its own legislation in order to further restrict the British fishing effort. That led to the Sea Fish (Conservation) Act, which was to take effect in the middle of 1993. To some extent it was a continuum of previous policy, in so far as it involved yet another tie-up scheme along with the use of restrictive fisheries licences. However, the government also introduced a modest compensation package over the next five years which was worth £25m (subsequently increased by a further £28m) and that resulted in the Fishing Vessels (Decommissioning Scheme) 1992. This was derided by the Scottish industry on the grounds that the figure was much too small (Scotland being allocated £2.5m in 1993) and it amounted to little more than an auction.14 The tie-ups fared little better with the National Federation of Fishermen’s Organisations15 (NFFO) taking it to the ECJ in Luxembourg. Whilst the NFFO eventually lost the case, it achieved its goal: the ban was immediately suspended by the UK government. All in all, the industry ended up in worse, not better, shape towards the mid1990s. More and more fish was being landed illegally. That was partially because the quota itself was flawed – fishermen were reluctant to throw over-quota fish overboard when they hauled in their nets. Insufficient boats had been decommissioned, fish stocks continued to fall and the industry had split into two, with the SFF on one side and the much smaller Save Britain’s Fish (subsequently becoming the Fishermen’s Association Ltd) on the other. Too little money had been available for reducing the size of the fleet and too little aid had been available for its modernisation – something that was of interest to the Iberians. Although they did not formally secure access to fishing grounds in the North Sea, the Iberians were incorporated into the CFP in 1996.16 Their new-found status was the consequence of Spain’s threat to veto the 1995 Enlargement (Wright 1996). Faced with such a threat, there was nothing the Scottish industry could do. Moreover, Spain did have an extensive decommissioning system, with the result that it obtained EU aid for modernisation. Thus the Spanish fleet was more competitive than its UK counterparts and consequently, when UK fishing licences came up for sale, Spanish fishermen had the financial muscle to purchase them. That helped to fuel the so-called quota hoppers – fishermen from outside the UK who were able to purchase the licences from the owners of UK vessels. Yet the SFF was opposed to the Member States revisiting the quota arrangement in its entirety, as that might have enabled the Iberians to secure formal fishing rights in North Sea. Thus, in sum the 1990s were traumatic years for the industry; they also

Functionalism and subsidiarity 123 were something of a wasted opportunity. If a more comprehensive decommissioning scheme had been in force, with the result that more vessels were withdrawn from the fleet, then the crisis at the turn of the millennium might not have had such a critical effect on the industry in Scotland.

1999: an industry in crisis Within days of Holyrood’s opening session in 1999, MSPs held a lively debate on fisheries. This was because it had been announced that 6,000 square miles of what were believed to be ‘Scottish waters’ would be assigned to England, as a result of the Scottish Adjacent Boundaries Order (1999). Even more contentiously, MSPs had not even been consulted on the matter. That was not surprising, however, as the original decision had been taken on 13 April that year by the Privy Council in London. Not only was such an order extra-parliamentary, it was made even before the parliament came into existence. So there was nothing MSPs could do other than protest. But whether they had cause for complaint was a different matter. The reason for the boundary change was that under The Scotland Act (1998) competence for fisheries was to be assigned to the Scottish Executive. That meant that from this point on, Scotland would have its own clearly delineated waters, and in so doing, it exposed the misconception that the 6,000 miles in question ‘belonged’ to Scotland. As an official at the Executive subsequently observed, scant attention was paid to the fact that Scotland now had 120,000 square miles of its own waters. Technically, that may be so, but as far as fisheries were concerned, key decisions over the sector’s future were still taken not in Edinburgh but in Brussels and also London. Whilst the boundaries issue was little more than a storm in a tea cup, it unsettled MSPs because it served to highlight how little power they possessed over fisheries almost before they had a chance to draw their first breath at Holyrood. All they could do, therefore, was instruct Ross Finnie, the Scottish Executive fisheries minister, to ‘convey their concerns’ to Dr Reid, who was then the Scottish Secretary.17 That was the end of the matter, but as fish stocks continued to plummet, the sector remained in serious trouble. By 1999 two dynamics were beginning to converge, as far as the CFP was concerned. The framework which had been agreed in 1983 only lasted twenty years. Thus by the time Holyrood had first convened, the Commission’s consultation exercise on the policy’s future was already underway. It revealed that ‘there was little enthusiasm for scrapping the six to twelve mile derogation’, albeit that ‘Spain, Portugal, Finland and Sweden supported the abolition of all discriminatory restrictions on access to the North Sea’.18 The consultation exercise was the first step towards a comprehensive review of the CFP, with the prospect of a substantive reform package being agreed by the Council by 2003. However, the review coincided with a sharp drop in stocks of fish. That was especially so in the North Sea, which formerly contained some of the Scottish industry’s most productive fishing grounds. The Scottish fleet was particularly vulnerable at the time, because as suggested above, unlike some of its counterparts in the EU, there had been insufficient cuts in capacity. The fishermen, for their part, saw little reason

124 Functionalism and subsidiarity to quit if they could still secure a viable return on their fishing trips. The situation was complicated further by the tendency for Scottish skippers to own their own boats, which would require substantive loans. Furthermore, if they did quit fishing there was no guarantee of suitable employment in the fishing communities, many of which lay on Scotland’s periphery. Consequently, although the decline of the Scottish fleet seemed inevitable, actually implementing such a reduction in capacity would prove to be a very thorny matter indeed for the Executive. To begin with at least, the emphasis was on stabilising fish stocks rather than the decimation of the Scottish fleet per se. That, however, was not to last long. In 1998, the precautionary principle was first used in relation to the CFP. But as one Scottish official observed, ‘it got off on the wrong foot as the Commission did not prepare the ground sufficiently as to how it would be applied or how it stood to affect the relationship between fishermen and scientists’.19 The intention had been that by specifying spawning stock biomass rates and mortality rates, scientists could then suggest precautionary limits on catches, which would over time return stocks to the correct state. Thus when the TACs were being formulated during the autumn, usage of the precautionary principle was designed to redress stock imbalance over the next few years. This was greeted with some scepticism by the fishermen, who when faced with potential cuts in fishing effort continued to challenge the veracity of the scientists’ conclusions. Before long, however, the principle was somewhat overshadowed by the need to reduce more radically the fishing effort in EU waters. In June 2000, Franz Fischler, the European Commissioner responsible for fisheries, issued a stark warning to the EU’s fishermen. Noting that catches of cod were down 28 per cent against the previous year in the North Sea alone, he said: If we simply carry on as before then the disequilibrium between capacity and fish stocks will get even worse, globalisation will pass us by and our fisheries sector will not be competitive. Every year we restrict catches, adopt technical measures such as mesh sizes, work out fleet reduction programmes and monitor compliance with the rules. Despite this, the state of many economically important fish stocks has been a cause of concern for years. We should not underestimate the social dimension either. Despite major subsidies we have not made much progress in solving the social problems. We are still operating at over-capacity. We have still not found sufficient alternative employment.20 Six months later, the Commission called for cuts in the TAC off Scotland’s west coast for cod, whiting and haddock at 56, 35 and 40 per cent respectively. The TAC for northern hake, which also included stocks caught in the North Sea, was to be reduced by 74 per cent.21 Although this would require agreement from ministers in the forthcoming Council meeting, it was clear that urgent action would have to be taken. Even the Scottish media, which once had been such a firm supporter of the fishermen’s cause, reported that catches were ‘just fifteen per cent of what

Functionalism and subsidiarity 125 they were twenty years earlier’.22 The industry therefore faced a bleak future and the threat of widespread job losses. In response, the SFF called for ‘critical cod spawning grounds’ to be closed and for ‘an investment plan to protect fragile communities’. The WWF, a supporter of the fishermen’s proposals, estimated that 40,000 jobs would be at risk in Scotland.23 For a while the situation improved. The Commission backed down from its position advocating substantive cuts and warmed to the idea of a ten-week moratorium on the ‘fishing effort’ in certain areas, whilst Ross Finnie indicated that he was willing to consider some sort of aid package in return for decommissioning.24 The SFF, meanwhile, was seeking a £100m aid package for the industry.25 By now the fishermen were becoming increasingly militant and they threatened to blockade Scottish ports including Aberdeen. For their part, MSPs were well aware of the fishermen’s plight. On 8 March 2001 the Executive suffered its first defeat at Holyrood when MSPs passed a resolution calling for a short-term tie-up scheme. Rhona Brankin, a Scottish minister, argued that decommissioning was a better option and offered a £25 million package in return.26 In itself, the vote was of little consequence. It did not bind the Executive to a particular course of action and the defeat was the result of a shortage of Labour MSPs, a number of whom were en route to a party conference. Nevertheless ministers were left in little doubt that from henceforth, they would remain under the watchful eye of MSPs. But by now, things were set to deteriorate markedly. As far as Scottish fishermen were concerned, during the ensuing eighteen months the situation went from bad to worse. By December 2001, 108 skippers had agreed to decommission their vessels in response to the Executive’s scheme, thereby reducing the fleet’s capacity by 12,300 tonnes.27 But by the following April, the Commission was calling for further cuts in the EU’s fleet.28 Shortly thereafter it was apparent that a further 9,000 boats would have to be scrapped across the EU. By now, negotiations on the future of the CFP were nearing their conclusion. According to The Times, Elliot Morley, the UK fisheries minister, welcomed the ‘broad thrust of the proposals’, which included the retention of the six- to twelvemile fishing limit.29 Mr Finnie, for his part, described the proposals as ‘radical’ but he appreciated that they were indicative of the desire for ‘effective and fundamental reform’.30 But when the Council met during June 2002, it was split on the Commission’s proposals, especially those relating to switching EU aid from fleet modernisation to incentives for fishermen to quit the industry. Whilst Germany and the UK supported a proposal to scrap 8,600 vessels, Portugal claimed that the EU’s strategy was ‘politically unacceptable and technically wrong’, whilst the Spanish fisheries minister stated that: ‘we have to modify the proposal. We think there are scientific errors’.31 It was therefore apparent that the Council, the body responsible for agreeing the future of the sector, was split along north–south lines. That did not augur well with the culmination of the CFP review just months away. By October, the fishermen’s worst fears were realised when it was announced that there were to be further cuts to the fishing effort. On this occasion, however,

126 Functionalism and subsidiarity the media claimed that it was Finnie himself who was keen for an additional reduction of ‘at least 50 per cent in cod catches’. By now both he and Morely were being viewed as ‘the enemy’ by an industry which was already undergoing a 20 per cent cut in capacity as a result of the Executive’s decommissioning scheme.32 A couple of weeks later, ICES, the scientific body which advised the Commission on the TACs, called for Scotland’s cod, haddock and whiting grounds to be closed completely, prompting the fear that 20,000 jobs would be lost. Scottish skippers, in response called for the resignations of Finnie and Morley.33 When the issue came before the parliament, Finnie claimed that such a ban would be ‘politically unacceptable and economically ruinous’. He also hinted that he would be leading the UK delegation at the forthcoming Council meeting. However, that was not only quickly corrected by an official from the Scottish Executive,34 the Department of the Environment, Food and Rural Affairs (DEFRA) also indicated it would be led by UK ministers.35 EU fisheries ministers decided subsequently at their meeting in December 2002 that UK fishermen could only fish for nine days a month, if a complete collapse in North Sea stocks was to be forestalled. The Commission, however, was willing in principle to consider extending the limit to fifteen days in order that the fishermen could get to and from the fishing grounds. It was also confirmed that there would be a further 50 per cent cut in the TACs for haddock and whiting and the ‘UK was instructed to decommission its fleet by a further twenty per cent over the coming two years’.36 Faced with the meltdown of the industry, the need for adequate compensation preoccupied the minds of Scottish fishermen, who had some time earlier called for £100m in aid. As part of its reforms the Commission had agreed that EU funding should no longer be allocated to the modernisation of the fleet, but should be spent instead on assisting fishermen to quit the sector (e.g. funding re-training schemes). But this risked coming to nought as far as UK fishermen were concerned, because the Foreign Office maintained that if the UK were to draw down such aid it would have an adverse affect on the UK’s abatement (rebate) from the EU. An official despatched an email to that effect to Scotland’s four MEPs, in which it was also suggested that ‘national financing was the preferred route’.37 By this time the Executive’s own aid package had grown to £50m but Conservative and SNP MEPs called for the extra £70m that was potentially available from the Commission to be utilised as well.38 Mr Morely subsequently told MSPs on the rural development committee, however, that there was not a ‘pot of gold and that any EU money would simply come out of the UK taxpayer’s pocket at the end of the day’.39 By February 2003, it appeared that the closure of the cod fisheries could become a permanent fixture – it being originally intended that the ban would only be in force for six months.40 The following May, announcing a five-to-ten-year cod recovery plan, Fischler advocated the introduction of annual limits to days at sea as opposed to the current monthly period of fifteen. The days in question would be allocated on a ‘national basis’. He also reaffirmed that ‘millions of Euros were available to help the troubled whitefish sector’, but senior figures in the Scottish industry were unconvinced that their colleagues would benefit from this.41 Summing up the dilemma the Sunday

Functionalism and subsidiarity 127 Times explained: ‘Although Brussels has allocated a £150m aid package to the UK fleet, it is thought ministers are reluctant to claim the cash, because for every 29p released by Brussels, London must put up 71p.’42 It had long been accepted by Scottish civil servants that securing EU structural aid would be a problem. One official at the Executive had commented in 1999: ‘Yes there was a quid pro quo then over additionality at Fountainbleu. If we were funding UK vessels our contribution would be too great. This is difficult for fishermen to accept but it would be tantamount to subsidising them.’43 Thus it would appear that there was little likelihood of Scottish fishermen securing those EU monies, which the Commission had earmarked for the downsizing of the sector. To date it remains to be seen how far devolution has had a beneficial effect on the Scottish fisheries sector. Although the Executive has competence for fisheries, figures in the industry believed during devolution’s early years that there had been ‘a cultural problem’. One chief executive in the industry observed: The Executive’s fisheries dept has been so much under the shadow of MAFF [the UK department which formerly was responsible for the sector] that even though they have more power they are reluctant to use it. The other issue is the whole future of MAFF. They are still repelling boarders. There is an unreal atmosphere about devolution. A lot of people do not understand devolution, a lot of fishermen think that de facto there is an independent Scottish government.44 Presumably any misconception about Scottish independence will have been rectified by now. What the Executive could and did do, however, was to provide its own structural aid towards decommissioning – which contrasts rather with the situation between 1987 and 1991 when the UK government was responsible for this and failed to do so. Not everyone was satisfied, however. For instance, the Secretary of the Scottish White Fish Producers Association complained that Finnie had been relegated to ‘merely carrying Mr Morely’s suitcase’ and that he was ‘muzzled in Brussels’.45 Clearly the Executive shared much the same goals as the UK government over the CFP – namely that there was little alternative to implementing substantive cuts to the fishing effort. Yet the paradox remains that the Executive has also been intent on securing more autonomy in relation to EU policy-making. It could thus be assumed that the same applied also to the CFP. However, when the Convention on the future of Europe finished its deliberations in the summer of 2003, its recommendations included the demand that competence for the conservation of marine resources should be exclusive to the EU. Whether the Member States agree to that remains to be seen. Both the Scottish fishermen and the SNP have fiercely resisted the proposal. The latter have called for fisheries to be under the ‘genuine control’ of the Scottish parliament.46 Whilst for its part, the SFF has concentrated increasingly on securing a measure of decentralisation within the CFP’s decision-making processes, the result of which would be the eventual ‘zonalisation’ of the fishing sector.

128 Functionalism and subsidiarity

Subsidiarity and zonalisation During the 1970s, Scottish fishermen had underestimated the extent to which competence for fisheries resided with the EU, but the 1983 deal on the quota was clearly something of a victory for both them and the UK government. However, during the following decade there was mounting concern not just about the CFP’s capacity to devastate the industry but also the extent to which EU decision-making was too centralised. Scottish (and English) fishermen came to appreciate that they were simply too far removed from ‘power’. Although there was an Advisory Committee on fisheries, which enabled fishermen to comment on the Commission’s proposals, it generally worked to the lowest common denominator. There was also a sense of resentment amongst Scottish and English fishermen47 that all the Member States could participate in decision-making in the Council, regardless of whether their nationals had any direct involvement in the fishing grounds concerned. That fuelled the demand that the CFP should be regionalised. A former chief executive of the SFF explained: What the SFF has proposed by way of policy-making for the future of the CFP, is an approach which would devolve these functions from the Council of Ministers, as a whole, to Sub-Committees of the Council comprised of Member States, with legitimate fishing track record and quota entitlements in the various Regions or Zones such as the North Sea, West of Scotland, the Baltic and the Mediterranean and so on.48 However, although the Scottish Executive believed that this would not be possible, it did warm to the idea that there should be a regional forum of some kind. An official commented: The regionalisation of CFP is unlikely, as it would require an amendment to the Treaties. What might be more acceptable would be if there was a forum below that of the Council, some advisory bodies, say relating to the North Sea or the Mediterranean which agrees on policy framework and then brings this to the Council to be rubber stamped.49 Thus the Executive’s attitude towards regionalisation differed from that of the SFF, in so far as such a body would only have advisory status. However, when the SFF and NFFO issued a joint proposal for a system of Zonal Management in May 2000, they retained the demand for greater participation in decision-making. The zones in question would apply to the North Sea or waters off the West of Scotland, for example. The proposal then argued that there was already such an arrangement for the Baltic and a ‘less formal arrangement in the Celtic Sea’. It was also suggested that the European Commission could chair and service the committees and that ‘national officials’ should also be ‘directly involved’. The Council (of the EU), for its part, ‘would only become involved in setting catch limits if no consensus was possible within the committee’ in which

Functionalism and subsidiarity 129 case the matter would be resolved by a ‘sub-committee of the Council’.50 These proposals were rather too ambitious for the EU at the time, but they did make some headway in advance of the 2003 Review. The Commission supported the demand for regional committees when it published its Green Paper on the future of the CFP in 2001 – albeit that it affirmed that this would not amount to ‘formal participation of stakeholders in the decisionmaking process’.51 In so doing, it set the scene for the first hesitant steps towards the regionalisation of the CFP. It was subsequently agreed that Regional Advisory Councils (RAC) would be established.52 This fell short of the fishermen’s demands, however, and their reactions were mixed. The chief executive of the NFFO argued that ‘the Councils should be given real decision-making power’. 53 Recognising the political realities of the situation, his counterpart at the SFF maintained that the gradualist approach to the regionalisation of the CFP might one day yield dividends, not least because it would be difficult for the Council of the EU to ignore completely the views of a particular RAC.54 In the meantime, however, it remains to be seen how influential the RACs will really be.55 Thus, as far as the regionalisation of the CFP is concerned, the door has opened but only by a crack, at best. Nonetheless, although the RACs will only have advisory status, their creation implies that not only will fishermen have a more comprehensive involvement in the formulation of the CFP but also that such participation would be on a decentralised basis. As the CFP is inherently a functional policy, the reforms of 2002–3 could thus be conceptualised as a form of ‘functional regionalism’. Hitherto, this term has been used in relation to a form of functional decentralisation within states, which related primarily to economic planning and modernisation.56 In the context of this particular study, however, usage of the term implies that regional actors have secured, or aspire to secure, a degree of autonomy in relation to a functional area of policy. That this was so was not solely because a highly centralised approach to EU policy-making had clearly failed in its aims by 2003 – which it had. It was also because the EU was set to enlarge. Some of the applicant states are completely land-locked and thus in theory would have no legitimate interest in fisheries. Previously, in such an instance, a Member State might abstain from voting in the Council (e.g. Luxembourg). But with the number of states set to increase markedly, retaining such a voluntary convention is less tenable when so much intergovernmental bargaining and trade-offs occurs within the Council. Although to date the regionalisation of the CFP has been modest, to say the least, will the RACs be the precursor of more extensive and substantive forms of functional regionalism once the EU expands in size? Conversely, will the CFP become even more centralised? The EU’s draft constitution proposed that the conservation of marine resources should fall within the exclusive competence of the EU. If that were to come to pass then the principle of subsidiarity would be inapplicable, which in turn calls into question the potency of the RACs. Thus, as far as fisheries are concerned the EU risks facing in two different directions at once. The situation is complicated further by developments in the UK. The Conservative Party has called for Britain’s withdrawal from the CFP completely, to which the European Commission responded that this would not be a simple

130 Functionalism and subsidiarity matter. The latter argued that as the CFP’s roots can be traced to the Treaty of Rome, the UK would be in breach of the treaty if it quit unilaterally and thus, it would have to leave the EU and reapply for membership – which would probably be to its disadvantage.57 For their part, the fishermen (or more accurately those who catch stocks of white fish) threatened to ignore completely the EU’s restrictions on days at sea during 2004.58 That threat was then withdrawn and instead they aim to test the current arrangement by using up the annual entitlement of their days at sea in one fell swoop, on the basis that if this was rationed to a few days a month that would be uneconomic. Once their entitlement is used up, they will then lay down the gauntlet and see what happens next. It therefore comes as little surprise that sources close to the Prime Minister have hinted at the possibility of a ‘radical’ decentralisation of the CFP and that this should secure the support of the Commission.59 Thus, for the moment at least, both the future of industry and the CFP, more generally, remain in a state of flux.

10 The EU and international affairs Drivers for autonomy?

A strong nationalist party with good electoral support will usually bring about concessions from the centre, but the centre will exercise its constitutional power and political ingenuity to confuse the nation and meet its demands only halfway. Thus ‘top down’ politics prevails unless the pressure and resources from below are maintained or increased. (Kellas 1998: 107–108)

During the last 30 years, territorial actors have become involved increasingly in international affairs. This involvement is indicative of the extent to which such forces can impact directly at the territorial level – globalisation being one such example. Whilst states retain, to some degree, primacy in the international arena, they are no longer the only actors. Within that arena they co-exist with transnational corporations, international organisations such as WWF, and, regional blocs such as the EU. One consequence of this is that states no longer monopolise power in quite the same way that they once did; power is more ‘dispersed, thereby calling into question the worth of the concept of sovereignty’ (Strange 1996). That is particularly so in relation to the EU, where collectively the Member States can be extremely powerful but individually, where QMV applies, potentially they can be somewhat less so. Accordingly, in some respects, states are less able to act as intermediary between international and territorial actors, with the result that the onus rests to no small extent on territories themselves to formulate and execute their own distinctive foreign affairs agendas. In effect there is a degree of ‘parallelism’ between the international arena and its counterpart at the territorial level. What happens in the former has implications for the latter, and territorial governments endeavour to act accordingly. That was particularly so in relation to the EU, because right from its inception, policies which were determined in Brussels could have far-reaching consequences for its territories’ welfare. However, the SEA, which served to herald the Single Market, became something of a watershed. In its aftermath, regional mobilisation intensified considerably. Although there is little sign that nation states such as the UK are on the verge of becoming an anachronism, how long can this continue as far as Scotland is concerned? Although there is currently little sign that the UK government is considering assigning more autonomy to Scotland, it remains to be seen how long the current

132 The EU and international affairs constitutional arrangement will prevail. In essence, the underlying issue is how far the needs of Scotland, a nation with distinct interests, can be accommodated satisfactorily, not just in relation to the UK, or even the EU, but also with regard to the global arena. ‘Consocialism’ reflects the ‘ideal’ that different national groups can co-exist peacefully within the same polity, a polity in which there is a degree of equity between the constituent national groups. It works best on the basis that ‘one group does not dominate the other(s)’.1 Consocial democracies come in a number of guises; examples include federal, quasi-federal, devolved and decentralised states.2 Whilst acknowledging that ‘the history of consocialism has been marked by tension and breakdown’, Kellas, observed that it was ‘the best way to combine several nations in one state’.3 The potential for a successful outcome was dependent on a number of variables, however. Structurally the ‘segments should not change in importance or size relatively to one another’, and the political leadership should possess the capacity to ‘control the rank and file’, otherwise, ‘the accommodation between elites would be in vain’.4 If political accommodation is to be realised, then ‘no one nation should have a majority position in the state government or legislature or at least use that position to discriminate against minority nations’, and, ‘each nation should have a measure of autonomy within its territory’.5 Without attributes such as these, a state ‘risked losing the support of its national minorities’ (Kellas 1998: 222). Viewed from this perspective, the UK represents something of a challenge to the ideal of consocialism by virtue of the imbalance between the constituent national groups. Eighty-five per cent of the UK’s population resides in England. Consequently, for the most proper of reasons, the majority of UK ministers are likely to be English (the relatively large number of Scots currently holding ministerial portfolios being something of an aberration). Allied to which, the legitimacy of the prevailing constitutional arrangement is dependent on whether the ‘national minorities’ perceive that to a greater-or-lesser extent the UK government can accommodate their interests satisfactorily. The issue that then arises is whether that can succeed best under the current pragmatic system of inter-governmental relations, much of which is based currently on convention, informality and goodwill. Although this arrangement appeared to work during the parliament’s first four-year term, in the longer run it is no panacea. In itself, goodwill will not necessarily underpin inter-governmental relations when different parties are in office and those mechanisms which currently exist, such as the JMCs, lack sufficient democratic scrutiny. The absence of transparency could help to fuel a sense of grievance if national minorities came to perceive rightly or wrongly that their needs were not being met by the centre. Under the current devolved system in the UK, the centre retains competence for constitutional matters and formally the relationship between the centre and its territories is not one of equal partnership. The Scottish parliament is subordinate to Westminster. Scotland’s political dependency is therefore set to continue under the current arrangement, although that can be to some degree offset by accommodation between political elites at the centre and Scotland – as was so during the parliament’s first

The EU and international affairs 133 four-year term. Thus to some extent the system of government in the UK has traces of consocialism but these are relatively weak, which calls into question the viability of devolution in the future. Yet it is by no means clear what should best follow it. In a number of respects a federal constitution would better meet the prerequisites of consocialism. Political authority would be shared between the constituent political units and a constitutional court could arbitrate should the competence of the federal government and its territories become a matter of dispute. More crucially, the powers of the various tiers of government would be ‘constitutionally entrenched’. The objectives of federalists are underpinned by a ‘moral discourse ‘which is ‘rooted in the following principles: ‘human dignity, mutual respect, and reciprocity; tolerance, consent, and voluntarism’. As such they are held to epitomise ‘the politics of difference’ (Burgess 2003: 1). Hence the act of federation is inherently altruistic in terms of its ambition. It is based on the toleration and the accommodation of diversity. This is reinforced by the commitment to federal loyalty and the common good. However, federalism is of limited worth when it is confronted with the demand for ‘relative autonomy and self-determination sought by distinct self-conscious nations living together in the same state’. Consequently, ‘it is appropriate only at certain times and in certain circumstances’ (Ibid.: 3). Even so, are there grounds for supposing that one day the UK might become a federation of nations in its own right? Whilst realising that for the moment at least a ‘federal Britain in a federal Europe is little more than a flight of fancy’, Henig also maintained that ‘many of the ingredients for it are already in place’ (Henig 2002: 236). But he conceded that at present a ‘federal structure in the UK is unworkable’. The reasons for that have been well documented. First, there is no evidence that the majority of people in the UK would support such a development (see, for example, Keating 2001a: 109). Second, as MacCormick observed, the ‘federalisation’ of England is highly contentious. If it was subdivided into a number of federal units, Scotland might object, if it was held to be of the same status as southwest England, for example. If England were a single federal unit, then it would overbalance the remaining constituent elements of a UK federation by virtue of its economic dominance and its political leverage due to its population size (MacCormick 1999: 194–195). In sum, therefore, for the moment at least, federalism does not appear to offer a realistic solution to the lack of Scottish autonomy – though that is not to say that one day it might not come to pass. It is at this point that contemporary discourse on Scotland’s situation becomes rather more diffuse, albeit that there is something of a consensus that the EU itself remains in transition and that sovereignty may not amount to much these days. MacCormick and Keating both start from the same point – namely that we should now be thinking in terms of ‘post-sovereignty’, but their prescriptions as to what is best for a territory such as Scotland differed markedly. MacCormick believed that the EU could best be described as a ‘Commonwealth’,6 in which the ‘idea of exclusive territoriality is weakened’. Thus, instead of ‘rival claims to sovereign statehood over disputed territories and populations’, it offered its peoples the opportunity to focus on agreeing on ‘the allocation of levels of political

134 The EU and international affairs authority’ through a more fully evolved understanding of the principle of subsidiarity.7 Within this ‘confederal commonwealth’ Scotland would take its place as a Member State in its own right. However, Keating believed that regardless of their constitutional status, the influence of smaller nations in the EU was likely to become more prominent postenlargement, the implication being that collectively they would have a stronger voice in the EU which would be less easy to ignore.8 The second element to his line of argument was that whilst a ‘coherent third level’ had not come to fruition, developments such as the CoR, the establishment of regional offices in Brussels and joint lobbies had resulted not just in the creation of a ‘new political space’ but a ‘multiplicity of spaces for sub-state actors’.9 He also observed that ‘the classical doctrine whereby state diplomacy promoted a single national interest was increasingly untenable’.10 Rather, there were many ‘opportunities for nations to express themselves other than states’. In effect, from this perspective, ‘independence’ did not necessarily amount to much in practice, when sovereignty no longer really existed and sub-state actors could pick and choose whichever lever of influence enabled them to realise their goals.11 Sometimes this would be via central government, at other times via a joint lobby such as RegLeg and where necessary by dealing directly with the Commission and the EP.12 With the EU still evolving, it made ‘sense to keep all options open’.13 It would therefore appear that the notion of independence, in its classical sense (i.e. sovereignty), is rather less tenable today than was the case hitherto. Not unnaturally, the issue of what independence amounts to in practice has exercised the minds of the UK’s (territorial) nationalist parties. Officially the SNP’s policy remains that of ‘independence in Europe’. But there is by no means a consensus within the party on that. That is because of the constraint the EU places on the attainment of ‘pure’ independence. This rather came to the fore during June 2003 when some party members were deeply critical of the work of the Convention on the future of Europe14 and its proposals for a European constitution. In Wales, the usage of the term independence was itself clearly problematic. During the course of the elections to choose a new leader for Plaid Cymru’s Assembly Group in 2003, two of the three contenders distanced themselves from the word.15 One suggested ‘full national status’ was more apt, whilst the other maintained that ‘Wales would always be a part of the UK but that there needed to be a more equal partnership based on free association’.16 This last perspective appears rather overoptimistic not least because it rests on the notion that the UK government would be quite content for Wales to pick and choose where it possessed full autonomy and where it did not. Nevertheless it was indicative of the elusiveness of ‘independence’ in a post-sovereign era, even for those who were members of nationalist parties. Perhaps it would be better to stick to the term self-government and leave it at that. This is dependent on the extent to which citizens can govern themselves via their democratic institutions (Mitchell 1996). By default, self-government implies that, where necessary, those institutions possess sufficient political authority to influence EU decision-making at its source. That is yet to come fully to fruition for Scotland.

The EU and international affairs 135 For the moment at least, Scotland continues to remain reliant to a fair degree on the UK government of the day, as far as relations with the EU are concerned. If Scottish ministers wished to attend the Council as part of the UK delegation, they require the consent of the relevant minister from the lead department in Whitehall. If the Executive adopted a more confrontational style of relations with the UK government, it could find itself disconnected from the Whitehall network to a greater or lesser extent. Moreover, the pragmatic arrangement itself risks leaving the Executive vulnerable to the whims of whichever party happens to be in office in London. There is little to prevent an incoming UK government from radically revising the various mechanisms which were the product of the Memorandum of Understanding (i.e. the concordats and the JMC), none of which in a formal sense appear to possess a legal base. Whilst there is some credence to the view that a future UK government would not deliberately set out to damage the relationship between itself and a Scottish administration, this is by no means set in stone. In the meantime the accommodation of Scottish interests remains dependent on the efficacy of a pragmatic arrangement which bears many of the hallmarks and the potential deficiencies of the one which preceded it. Nonetheless the Executive has, with some success, pursued its own foreign policy during the last four years, and in so doing this could be conceived by some as exemplifying multi-level governance. The value of the multi-level governance model was not so much that it offered a conceptual framework for regional mobilisation per se, but that it helped illuminate the salience of the regions to the process of European integration. As a consequence, conceptual analysis of European integration could be less easily confined purely to the inter-governmental/neo-functionalist nexus. However, the worth of multi-level governance was rather circumscribed by the implication (albeit qualified) that sub-state actors enjoyed a measure of autonomy in relation to policy-making in the EU. Whilst that may have been true for the Belgian SNEs or the German Länder, there is reason to suppose that it was of less relevance to those territories which were not part of a federal polity. Nonetheless, territorial administrations, especially those with legislative powers, have been confronted with the scenario that domestic policies, which hitherto had either exclusively fallen within their competence, or which they shared with their central government, had over time been assigned to the EU. Consequently, domestic policy had been Europeanised (EDP). Thus to some degree it has become incumbent on territorial actors, especially those with legislative powers, to respond accordingly. Most entered the European political arena as players in their own right in order to secure a modicum of influence over those EU policies which also fell within their competencies. Some attempted to ‘rein in’ the EU, others were also intent on securing direct access to decision-making in the Council. The EDP model did offer an insight into why the regions mobilised in the ways that they did. However, it was somewhat narrow in focus because it related primarily to the EU itself. Para- and proto-diplomacy offered a somewhat wider perspective than EDP on regional mobilisation. Territorial governments could forge alliances with other regions (including those outside the EU) based on mutual self-interest. They could

136 The EU and international affairs also attempt to attract inward investment, and, in so doing, the regions were competitors. For its part, proto-diplomacy served to highlight that the foreign affairs agendas of territorial administrations did not necessarily complement that of their central government – such an agenda might mark the first steps to secession from its state. Yet, these two models also had their limitations. In part, this was because of the issue of whether they were actually conducting diplomatic relations, somewhat akin to that of their central government. The creation of regional offices in Brussels could be construed as one such example, but these mainly confined themselves to intelligence-gathering to date. In addition, it is questionable whether the activities of sectoral pressure groups such as the SFF could be viewed as a form of diplomacy. Nonetheless, in the final analysis it could be inferred that at the very least para- and proto-diplomacy served to highlight that territorial administrations had a foreign affairs agenda, which was not simply confined to the EU, and that they could be international actors in their own right. In so doing, as with the EDP model, they were of relevance to Scotland’s situation. Regardless of the country’s constitutional status, Scottish ministers could not avoid becoming entangled in foreign affairs. However, prior to devolution in 1999, aside from the usage of inter-governmental channels within the UK, their foreign affairs agenda was to some degree confined to exploiting the informal side of EU policy-making and attracting inward investment via governmental agencies such as ‘Locate in Scotland’. Devolution itself, it could be said, created something of a paradox. In theory Scotland would secure more autonomy, because the parliament could legislate in those areas of policy which were not reserved to Westminster. But it would seem that 80 per cent of its work was affected by decisions taken in Brussels. Thus, as the EDP model illustrated so effectively, the Scottish Executive had relatively few options as to how best this could be redressed. It could, conceivably, call for a more formal arrangement concerning intergovernmental relations, which would entitle it to more control over how the UK formulated its position in relation to a given EU policy. But its room for manoeuvre was constrained by the devolution settlement itself. Constitutional matters were reserved to Westminster, and hence, even if the Executive so wished,17 it lacked the entitlement to secure new internal mechanisms as the Belgian SNEs and the Länder had managed to do in the aftermath of Maastricht. That left it with the more politically realistic option of attempting to rein in the EU, which the Executive duly attempted to do during the parliament’s first four-year term. Its call for a subsidiarity Council was designed to ensure that EU policies were not disproportional to Scotland. It also demanded that the EU should not use its power arbitrarily and that its territories should have a greater involvement in its decision-making processes. There should also be pre-legislative consultation by the Commission. Concerns such as these lay at the kernel of its proposals during 2003 concerning the work of the Convention on the future of Europe and the IGC.18 The Executive’s foreign affairs agenda was not purely confined to the EU, however. Between 1999 and 2003, Scotland’s international profile increased markedly, compared to what it was prior to devolution. Its First Ministers have held formal meetings with international figures ranging from the US President to

The EU and international affairs 137 the Irish Taoiseach. There have been concerted efforts to establish a new relationship with the Scottish diaspora in the USA and across the world more generally. Protocols and Action Plans have been agreed with other territories, an underlying aim being the promotion of trade. Scottish ministers have participated in international fora, as was so with McConnell at the world summit on the environment in South Africa. Whilst some of this can be attributed to McConnell himself (i.e. his personal interest in foreign affairs), it is also indicative of the fact that the Executive’s foreign affairs agenda cannot be merely restricted to the EU per se. Yet, with the possible exception of McCleish’s tenure in office, the Executive has consistently set out to ensure that there cannot be any misconception that it has formulated an alternate foreign policy to that of the UK government. When the Executive has issued press releases on a new foreign affairs initiative, more often than not it contained a reference highlighting the UK’s capacity to enhance Scotland’s influence overseas. The same often holds true regarding ministerial comments on international matters. Thus in the last instance, although it could be claimed that Scotland possesses a ‘foreign policy’, this is not concerned with ‘high politics’ akin to diplomacy conducted between states, but ‘low politics’. Low politics relates to Scottish domestic matters, which fall within the parliament’s competence and, as such, this relates to functional areas of policy. Accordingly, as was suggested in the previous chapter in relation to the zonalisation of the CFP, the Executive’s foreign affairs agenda could itself be conceived of in terms of being a form of ‘functional regionalism’. Functional regionalism is related to two distinct dynamics. Firstly, it refers the demand for the decentralisation of decision-making in functional areas of European policy, such as fisheries, which fall within the competence of territorial administrations. Both the SFF and Executive have attempted to rein in the EU’s power and secure a closer involvement in the formulation of those EU policies which stand to directly affect their interests. Secondly, functional regionalism refers to the creation of regional alliances between territorial governments and other bodies, including on occasion state governments. Such alliances are based on the pursuit of functional interests – that is to say low politics rather than those of high politics. It is relatively de-politicised in the sense that it is not a secessionist form of regionalism as per the proto-diplomacy model. It does not concern itself usually with areas of high level politics and it is not an attempt by a territory to secure ‘second level’ status (i.e. akin to that of a state) within the EU or globally. How far such a conceptual model is applicable to other territories in the EU is something of an open question, by virtue of their very diversity.

Who governs Scotland? In theory Westminster remains supreme, the Scottish parliament is a subordinate body and although EU law has direct effect in its Member States, the UK is not necessarily bound to abide by EU decisions. As far as the UK is concerned, if it perceived that a particular proposal would have adverse consequences for the ‘national’ interest then it could invoke the Luxembourg Compromise and secure

138 The EU and international affairs an ‘opt out’. In practice, the Luxembourg Compromise is now something of an anachronism – and even in 1984 ministers declined to resort to it over the by-catch dispute. In addition, where QMV applied, the EU’s Member States could agree a policy with or without the UK’s approval – as the global ban on the export of beef products demonstrated. For the moment, the UK government retains competence for defence and macro-economic policy. But even here ministers cannot ignore developments in these areas – both in relation to the EU itself, where there is now a single currency and an embryonic defence policy, and in relation to the rest of the world. Therefore, whilst in a constitutional sense the UK is in the last instance formally responsible for the government of Scotland, in a number of respects decisions which impact on Scotland’s welfare are taken well beyond the UK’s borders. Even so, there remains something of a ‘dualism’. For example, the UK government has retained its gatekeeping role with regard to the Council. The Scottish Executive is currently not entitled to ‘direct’19 representation there. If a Scottish minister was to lead the UK delegation (as happened with Nicol Stephen), then at that moment, de facto, the individual concerned becomes a UK minister not a Scottish one.20 In sum, therefore, it could be supposed that the UK government provides the key channels of influence to the EU. To an extent that is still so. Few Scottish interest groups would not attempt to capitalise on the UK’s influence in the Council. Governmental bodies, such as the Executive, would have little option to do otherwise. Yet, the functional regionalism undertaken by both the Executive and the SFF exemplifies not only the extent to which ‘power’ lies not necessarily solely in London, but in Brussels, but also how far the UK government in isolation no longer necessarily possesses the capacity to promote and protect Scottish interests in the EU. Consequently, both the Executive and the SFF have attempted to secure improved access to the EU’s policy processes at their source. This is by no means a novel development, as the scholastic studies on paradiplomacy, multi-level governance and EDP have indicated, but as these two actors showed (i.e. the Executive and SFF), securing a measure of influence over the EU’s policy processes was the centrepiece of their strategy. In so doing, it was indicative of the extent to which Brussels was gradually supplanting the UK government, as far as Scotland was concerned. Yet at the same time, as a result of the current constitutional arrangement, the UK government still retained a fair degree of control over Scotland’s autonomy in relation to European affairs. The situation for international matters is rather more ephemeral. Decisions taken elsewhere could also affect Scotland’s welfare. Disputes resulting from a breakdown in negotiations at the World Trade Organisation are one such example (e.g. retaliatory measures by the US government affected the clothing industry in the Borders some years ago). Trans-national capital provides inward investment in Scotland and if there is a global downturn in a particular sector that can lead to layoffs (e.g. the collapse of the semi-conductor market led to redundancies in parts of Scotland during the 1990s). Internationalisation is also indicative of the erosion of the capacity of the UK to mediate the effects of these forces. For instance, there was nothing that it could do when the semi-conductor market collapsed. All in all,

The EU and international affairs 139 therefore, international forces and European integration have served to challenge the concepts of sovereignty and independence and, in so doing, they have called into question how best Scotland can be governed. As was the case prior to 1999, where Scottish interests could not be accommodated satisfactorily via bureaucratic mechanisms, then the issue at hand could be referred to ministers themselves. That is relatively straightforward if the same or like-minded parties are in power in Edinburgh and London, as is the case at present. Moreover, presumably this has helped ensure that the relationship between the two tiers of government has been on a sound footing to date. But that is unlikely to last forever. Only then will the current pragmatic arrangement undergo its first real test. For the moment, the present situation is not too distinct from Bulpitt’s dual polity. But, as he rightly surmised, the efficacy of that arrangement was vulnerable to external forces. It is already apparent from the parliament’s first four years that Scottish actors require more autonomy within the EU. But for the moment, for constitutional reasons, this can only be attained through the regionalisation of the EU itself. That though is by no means straightforward. The CoR presently lacks substantive influence. The fishermen’s demand for the regionalisation of the CFP has yet to come fully to fruition. The call by the parliament’s European and External Relations Committee for a Regional Affairs Council fell on stony ground. However, that is not to say that territorial ministers are unable to vote in the Council concerning matters which fall within their competence. Some can and they do, where their internal constitutional arrangements so allow. But other ministers, such as those in Scotland, are less fortunate.21 Arguably, the EU should regionalise more radically than has been the case hitherto. The zonalisation of fisheries is but one small step and its significance should not be over-stated. But there is little reason why this could not apply elsewhere. Likewise, the Executive has also been calling for greater decentralisation concerning policy-making in the EU. It remains to be seen if that will come to fruition. The European Convention recommended that the CoR should have the right to refer infringements of subsidiarity to the ECJ in relation to ‘those legislative acts for the adoption of which the Constitution provides that it be consulted’.22 That went some way to meeting the Executive’s demands concerning the CoR. But whether this amounted to much in practice with regard to individual territories such as Scotland is questionable.23 Article 1.5 of the draft treaty called for the ‘respect of the national identities of the Member States, inherent in their fundamental structures, political and constitutional, including for regional and local self government’.24 Whilst this is a welcome development, it is far from clear whether it would really have any impact on protecting the competencies of territories with legislative powers such as Scotland, as the Executive had hoped. Nor for that matter did the Convention ‘provide any important new extra-state channels for the regions to influence EU decisions’ (Bourne 2003). Unless the IGC (which at the time of writing is in some disarray) sails a different tack to that of the Convention, it would appear that Scotland has little to gain substantively from the proposed reform of the EU. On the one hand, the authors

140 The EU and international affairs of the draft treaty recognised that there were more than two layers of government in the EU.25 Yet, there was little sign that territorial governments have secured the automatic entitlement to pre-legislative scrutiny, as the Scottish Executive had aspired to. Whilst there was a reference to the ‘implications for regional legislation’, the Commission would be merely obliged to issue a ‘detailed statement’ with regard to a legislative proposal.26 More particularly, at first glance the Protocol on the Application of the Principles of subsidiarity and Proportionality appears to be of little relevance to the Scottish parliament. Whilst it contained a provision for ‘national parliaments’ to object to a legislative proposal from the Commission on the grounds of subsidiarity, this did not amount to a veto. Furthermore, in bicameral systems each chamber has one vote.27 That would be of potential benefit to the Länder as a result of the Bundesrat, for example, but not automatically to Holyrood. As far as the UK is concerned, the Commons would be allocated one vote and the Lords the other. That said, Westminster was keen to establish a mechanism that would have enabled the devolved parliament/assemblies to have an input regarding subsidiarity in relation to a given EU proposal. But during the Rome summit in December 2003, it was soon apparent that the Member States were unable to resolve their differences over the EU’s future and it remains to be seen what will become of the work of the Convention. Either way, the regions’ concerns did not appear uppermost in the minds of Europe’s leaders in the run-up to the summit and, so far as Scotland is concerned, the UK government looks set to retain its gatekeeping role. Even so, European affairs in particular, and international matters more generally, could still act as drivers for greater Scottish autonomy. This in turn is connected to the notion that to some extent there continue to exist distinct structures of power, despite the premises that over the last few decades power itself has been increasingly de-concentrated and sovereignty does not amount to much in practice. Equally, it is also the case that in some areas of policy competencies overlap – as is the case with fisheries for example. That said, such are the structures of power which continue to prevail, the UK government retains the ‘political authority’ to make decisions of a strategic nature which can have substantive implications for Scotland’s relations with the EU. This was clearly so prior to devolution. Such examples include the government’s decision not to treat EU structural aid as being genuinely additional to EU monies until 1991 at the earliest, and the refusal of an adequate fishing decommissioning scheme between 1987 and 1991. A rather lacklustre version immediately thereafter had adverse consequences for the Scottish industry a decade later. Since 1999, the fishing sector was apparently denied a special aid package from the Commission, as the industry downsized, though it should also be noted that the Executive had its own (not ungenerous?) £50m scheme in situ. Whilst the events of the Thatcher and Major years can be viewed as being somewhat exceptional, constitutionally, it would seem that there is little to prevent such a situation from occurring once again, save for the fact that Scotland now has its own parliament. Albeit that for the moment at least, ‘territorial elites talk rather less of further immediate constitutional upheaval’ (Bradbury and Mitchell

The EU and international affairs 141 2002: 315),28 it is difficult to avoid the impression that the current constitutional arrangement is inherently unstable in part by virtue of its pragmatic characteristics. Consocialism rests to some degree on the perception by a minority within a polity that it has not been unfairly disadvantaged by those who govern. In a 1997 Scottish Referendum Survey, 60 per cent of those polled believed that a ‘Scottish parliament would give Scotland a stronger voice in the EU’.29 It remains to be seen if their faith is rewarded. To reorientate Kellas’ words (at the beginning of this chapter): as far as devolution is concerned, ‘has the centre exercised its constitutional power and political ingenuity to confuse the nation and meet its demands only halfway’? Either way, is the current level of autonomy sufficient? What is clear, is that in terms of the prevailing structures of power, the UK government retains sufficient political authority to circumscribe Scotland’s autonomy in relation to the international political arena. That has been, and still can be, detrimental to Scotland’s welfare. For the moment at least, therefore, in terms of the distribution and exercise of political authority, Scotland is governed not so much by Holyrood, but to a fair extent still by London and increasingly so by Brussels, especially in relation to functional areas of policy such as the CFP. This being the case, the EU in particular, and international affairs more generally, remain the Achilles’ heel of the current constitutional settlement.

Notes

1 Who governs Scotland? 1 Holyrood Magazine 23/04/01, p. 21. 2 In this context autonomy means self-government. 3 In essence devolution can take a number of forms; there can be executive devolution, administrative devolution and legislative devolution. Executive devolution occurs when a ministerially controlled body is given a degree of autonomy from the centre. It relates to territorial departments of government possessing the ‘power to take decisions over a wide range of executive matters’ (HMSO, 1973a: 37, para. 1,256). Administrative devolution means that governmental bodies themselves have some autonomy from their counterparts at the centre over the formulation and/or the implementation of policy. Whether this is possible in practice is open to doubt. In its chapter on administrative devolution the Royal Commission emphasised the similarity between administrative devolution and decentralisation: The system of government in Scotland and Wales is often referred to as administrative devolution and that in the English regions as decentralisation. We have found it convenient here to use the term administrative devolution to cover all arrangements for the conduct of central government business in Scotland, Wales and the English regions [. . .] We start with the simplest form of administrative devolution, the decentralisation of functions by individual departments, and then consider arrangements for interdepartmental co-ordination at the regional level’ (Ibid.: 296, para. 1,256) Legislative devolution implies that there is some form of sub-state legislature, which has the authority to create its own legislation in a range of policy fields. It is where legislative devolution occurs that the term devolution is most applicable. Thus devolution occurs when a subsidiary tier of government has the authority to formulate and create its own legislation. It has the authority to manage and administer the affairs of a distinct territory and it has its own legislature, to which its ministers are accountable. In turn that legislature is accountable to the people within that territory. At the same time the centre remains in overall authority; that is where sovereignty (is said to) resides. It has the power to decide how much authority is transferred to subsidiary tiers of government and which fields of policy those subsidiary tiers will be responsible for. See also note 38, chapter six, which both reiterates and amplifies the above. For further reading, see J. Mitchell who has written an historical study of administrative devolution entitled Governing Scotland (Palgrave 2003), which traces its evolution in the late nineteenth and early twentieth centuries. 4 It should be said, however, that by the mid-1990s he had his doubts about the robustness of the system. He observed: ‘the mechanics of Scottish government are inextricably

Notes 143 linked into the British system, albeit that they make up a system of a kind. The test is what kind of power, what kind of negotiations, what kind of decisions resulted, and I fear that generally Scotland was in a state of dependence on London, all the more so when London chose to exert its power in a dictatorial way’ (Kellas 1995: 108). 5 In the context of this book the term ‘centre’ refers to central government (i.e. the government in London). 6 Beyond Whitehall and Westminster the Centre was weak. It never developed any positive unionist culture. There was no dominant territorial department at the centre. There was no extensive system of field administration. The operational code of the polity was centre autonomy and territorial duality: this had never been formally articulated to the wider public. Thus if it came under sustained attack, support could be lacking. (Bulpitt 1983) 7 The main problem for advocates of a more consensual style of politics is there remain unresolved, perhaps irresolvable, issues in Scottish politics that divide the two main parties. The central question in Scottish politics, contrary to the expectations of supporters of consensual new politics, remains Scotland’s constitutional status. [. . .] In fact Scotland’s constitutional status is even more central to electoral politics after devolution than it was before. (J. Mitchell, New Parliament, New Politics in Scotland, Paper delivered at 1st meeting of Scandinavian and Scottish Political Scientists, Oslo, November 1999) 8 When the phrase ‘the parliament’ is used it refers to the Scottish parliament. 9 Strictly speaking this is the result of the Barnett Formula – but there is nothing to prevent a future UK government from abolishing it and replacing it with a new arrangement. 10 ‘Scotland will remain an integral part of the United Kingdom and The Queen will continue to be Head of State for the United Kingdom. The UK Parliament is and will remain sovereign.’ (HMSO 1997: x). 11 MacCormick summarised this as follows: ‘Despite the rhetoric of politicians, it cannot be credibly argued that any member state of the European Union remains politically or legally a sovereign state in the strict or traditional sense of these terms.’ (MacCormick 1999: 133). And: Here we then have a ‘post-sovereign’ Europe. It is a Europe of no longer absolutely sovereign states interacting with and through a Community with an independent legal order of its own. [. . .] That it can be said that there now coexist these two entities or sets of entities, the states of Europe, now not fully sovereign states and the European Union, still a non-sovereign union. (Ibid.: 142) 12 That is to say ‘rules by right of authority’ as opposed to governance which in this context refers to the ‘exercise of government’ (Hamlyn Encyclopedic World Dictionary, 1971). As we shall see in chapter three, however, the term governance is more complex than the above definition. 13 The pattern of devolved and retained functions is an intricate one. It can be hard to see in practice (and sometimes in principle) where a devolved function stops and a retained one starts. Even if that were clear, many of the policies or initiatives of one level of government will require some degree of contact between the devolved administration and the UK Government. (House of Lords, 2002: 11, para. 12)

144 Notes 14 Section 28 of The Scotland Act (1998) stated: ‘Subject to section 29 the Parliament may make laws, to be known as Acts of the Scottish Parliament. (1) This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.’ In principle Westminster would normally not enact legislation which would apply to areas devolved to Scotland without the consent of the Scottish parliament. In such instances the Sewel Convention would apply. Even so, the application of this convention needs to be closely monitored so that it is not abused at some point in the future. 15 These come under Schedule 5 of the Act and include the Crown, the Union of the Kingdoms of Scotland and England, fiscal monetary and economic policy, defence, home affairs (e.g. drugs), trade and industry (e.g. consumer protection), energy, transport and foreign affairs. 16 For simplicity EU is used throughout. 17 It is estimated that the EU and its policies affect 80 per cent of the parliament’s work – though the caveat should be added that to the best of the author’s knowledge there is no empirical basis for such a figure. 18 This institution was formerly called the Council of Ministers. 19 The Scottish Office was a territorial branch of the UK government, which ceased to exist in 1999. It was succeeded by the Scottish Executive, which was responsible primarily for those areas of policy which were devolved to Scotland, and by the Scotland Office, which was responsible for areas of policy reserved to Westminster. In 2003 the UK government decided to subsume the Scotland Office within the Department for Constitutional Affairs, although the office of Secretary of State was retained. 20 The Scottish Office mounted a vigorous lobby in the EU during 1984 to over-turn an agreement, which had been secured by the Danes on the by-catch of fish. They were successful in this (See A. Wright, Scotland and the EU: a Case of subsidiarity or Dependency, unpublished Ph.D. Thesis, , 1998). 21 The ‘lead’ department possessed overall responsibility for representing the UK in the EU. For example the Department of Trade and Industry was the lead for the EU’s structural funds. 22 Because Scotland has its own administrative and political institutions, notably the Scottish Office, its interests tend to be better represented in the Whitehall system than those of any other part of the UK, and consequently more effectively represented abroad. Moreover, because it is an integral part of the British government, the Scottish Office – and through it the various representative organisations in Scotland – has direct access to the governmental institutions of European Community in a way in which neither a devolved Scottish assembly nor a federal Scottish government would have. (Archer and Main 1980: 121) 23 Were Scotland to receive a devolved government, the picture would change. Unless the Scottish Office was retained in some form, access to Community decisionmaking could be made more difficult. Alternatively, means could be found for the direct articulation of Scottish and other ‘regional’ interests in the Communities. This proposal, which would no doubt be resisted strongly by national governments, is a corollary of proposals to devolve power to regions from national governments. (Keating and Waters 1985: 7) 24 Given the Scottish Office’s breadth of responsibilities and relatively small size, it is likely that a Scottish official or junior minister dealing with any matter will be faced with a Whitehall counterpart who is senior to him and may be better briefed on the details of the particular item under discussion. This inevitably reduces the

Notes 145 Scottish impact on policy and means that the Scottish Office role is more often one of responding than leading – though care is taken to ensure that the Scottish Office response makes a contribution to policy as a whole and is not merely special pleading for Scotland. (Ibid.: 65) (See also Mitchell 1997: 414.). 25 They also included the following statement in the final section of the chapter: ‘Scotland is still relatively well placed, as a peripheral region, to influence decisions as long as Community decision making remains the prerogative of national governments’ (Keating and Waters 1985: 86). 26 Scotland is not a region as such but a stateless nation. However, at times it will be referred to herein as a region, sub-state tier of government, or territory in the chapters which follow. The author apologises for any offence this may cause: the underlying intention is to ensure that the text is a little more readable. 27 But with regard to the ‘Europe of the Regions’ currently so fashionable in many quarters, it seems fair to conclude that scepticism ought to be the order of the day – regions are clearly not about to replace central governments as dominant socioeconomic actors, and neither do they have a common view on their mode of interaction. Thus to continue the discourse of the ‘Europe of the Regions’ betrays either the vision of the authors above termed utopians, or else, it betrays the economic and political realities of Europe today. What one can say about the state of Europe without doing injustice to the development of integration and regionalization of the past decade, on the one hand, and the continuing significance of the national level on the other, is probably close to the notion of a ‘Europe with not of the Regions’. The growth of initiatives and competencies on regional and European levels is accompanied, in many instances, by a reassertion of national governments and bureaucracies. (Borrás-Alomar et al. 1994: 23) 28 See for example, Scott et al. 1994: 42–67. 29 Pragmatic is a somewhat multifaceted word. Definitions include the following: ‘businesslike, practical, relating to the practical interpretation of political and social issues’. The word practical includes the definition/exposition: ‘political politics – what actually takes place or is possible in political life, sometimes implying lack of moral principle’. Pragmatism is rather more insightful: One definition is: ‘Theory that advocates dealing with social and political problems by practical methods adapted to the existing circumstances, rather than by methods which have been conformed to some ideology’ (The Oxford Dictionary, Second Edition). Thus pragmatism is a relatively informal and unstructured approach to inter-governmental relations somewhat akin to a ‘mend and make do’ or ‘muddle through’ style of government. 30 Whenever the views of the interests of Scotland and England differ, as they frequently do, a government of the UK must give preference, for good democratic reasons, to those of England. We are different in climate, geology, systems of law and education, industrial structure, the nature of our farming, the relative importance of fishing. For most of the time, therefore, Scotland under the present arrangements is either misrepresented or not represented at all. (Scott 1992: 44) 31 If the advantages of the UK option were not taken so much for granted they would be dazzling. [. . .] Scotland’s voice heard through the UK, is amplified in Brussels.

146 Notes Accordingly, it is likely that Scots have more influence within the EU now than they would have as an independent state. (Thomson 1994: 57 and 62) 32 Although this should strictly be referred to as legislative devolution, the term devolution will for the most part be used hereafter. 33 This volume was a by-product of an Economic and Social Research Council study into devolution and the EU by the following group of scholars: S. Bulmer, M. Burch, C. Carter, P. Hogwood and A. Scott. It is to date the most comprehensive account of intergovernmental relations between the UK and its devolved territories and EU policymaking. Although it focuses primarily on the arrangements post-devolution it also sets out in some detail the inter-governmental arrangements which pre-dated 1999. 34 That is not to say that ministers at the former Scottish Office did not have an EU strategy of sorts – they did – especially under Ian Lang who called for a multi-track approach to lobbying the EU. But they did not appear to have an overall strategy for Scotland in terms of acquiring a measure of power and control over EU policy-making in relation to those areas of policy which fell under the Scottish Office’s competence (an exception to this being perhaps the early 1970s – see chapter two). Nonetheless, as indicated elsewhere in this book, the work undertaken by ministers is shrouded in confidentiality and only when official papers are open to public inspection, will the real picture become clear. 35 The Scottish Executive is permitted its own office in Brussels but access to the Council of Ministers is still via the UK delegation into which Scottish ministers can be invited. They must follow the agreed UK line and any disputes on this will be settled by an interministerial council in which central government will have the last word. Joint policy making committees have been announced in matters of common concern, bearing a remarkable resemblance to the old committees that made policy between the Scottish Office and Whitehall departments. (Keating 2001b: 259) 36 Another school of thought is post-statist in its thinking and does not support independence, at least in the immediate future but sees the EU and NAFTA as providing new opportunities to exercise power and influence and to pursue the nation-building project short of becoming a state. The Catalans have proved most shrewd at this type of politics, seeking out opportunities in Europe for projecting their political, economic and cultural interests. [. . .] Many non-separatist Scottish nationalists, notably in the Labour party and the trade unions have been thinking along similar lines in anticipation of the creation of a devolved Scottish parliament. (Ibid.: 272) 37 The term elites is rather vague. In this context it refers to Scottish parliamentarians, ministers, senior civil servants, leaders of local councils along with their chief executives, the chief executives of quangos, senior figures in the professions and the business community. 38 In the concluding chapter of Regions in the European Community, Jones suggests that this was not uncommon: ‘The case studies reveal a proliferation of subnational levels of government, administration and organized groups whose interests frequently do not coincide with those of the central government. In most of the regions studied there are clearly expressed intentions to create more effective links between themselves and Brussels’ (Jones 1985: 244). 39 For example they share the same denomination of currency, welfare system, ‘national’ health service, army, navy, airforce, and monarchy (though some in Scotland may differ over whether the current incumbent is Elizabeth I or II).

Notes 147 40 For a wider discourse on Scottish distinctiveness, see Kellas 1989. 41 Capacity in this instance applies firstly to whether existing inter-governmental mechanisms could potentially ensure that Scottish interests were satisfactorily aggregated at the UK level, and secondly, whether this was potentially constrained by forces outside the UK polity (e.g. the UK government might be outvoted in the Council of the EU). 42 For example, in her autobiography, Mrs Thatcher was extremely critical of Malcolm Rifkind, who was once her Scottish Secretary of State – but apparently he still won the day over the back-dating of a new (local) Community Tax. She observed: Malcolm Rifkind now also fell back with a vengeance on the old counter-productive tactic of proving his Scottish virility by posturing as Scotland’s defender against Thatcherism. [. . .] Malcolm then went on to revel publicly in Scotland about his ‘victory’. It was suggested that he had only secured these changes by threatening resignation. He also told the press that I had fallen into line with his better judgement. This childish behaviour did the Conservative cause in Scotland great harm and prompted letters of protest by outraged Scottish Tories. (Thatcher 1993: 622) 43 For a fuller discussion on this, refer to note 38 in chapter six. 2 An emerging political arena 1 The Scotsman 26/03/57, The European Common Market scheme, set up by a treaty signed in Rome yesterday, will if ratified, vitally affect the economic future of this country, J.D. Vassie, p. 6. 2 T.J. Winning, ‘A new Scotland’ in the new Europe’, by Cardinal Thomas J. Winning, Archbishop of Glasgow, when he addressed a meeting in Brussels of the Commission of the Bishops’ Conferences of the European Union, Briefing, Vol. 28, Issue 10, 15 October 1998, p. 20. 3 Signatories: Robert McIntyre (President), Malcolm B. Shaw (Secretary), Arthur Donaldson (Chairman), D. R. Rollo (Treasurer), Letter from SNP – dated 7 November 1961 to Harold Macmillan, Scottish Executive File: File 519/ Pt A/ SOE 10/73. 4 Letter from P.J. Woodfield of Admiralty House in reply to SNP letter on behalf of the Prime Minister. December 19 1961. Scottish Executive File: File 519/ Pt A/ SOE 10/73. 5 Briefing note for the Lord Privy Seal by R.T. Higgens of the Foreign Office, undated, Scottish Executive File 519/ Pt A/ SOE 10/73, Scotland and the EEC. 6 Confederation of British Industry – Note by Europe Panel of CBI Scottish Council on Scottish implications of the possible entry of the UK into the EEC. 1967, Scottish Executive File, File SEP 10/392. 7 Draft notes for STUC meeting with Secretary of State 11 March 1970. BM Swift to Mr McKenzie. Scottish Executive File SEP 10/564. 8 Minute from J. Hogarth, dated 12 May 1967. Copy to: Mr Elliott-Binns, Dr Smith, Mr Whitworth, Mr Fearn, Mr Hume. Scottish Executive File SOE 3/507 Implications of Joining the European Economic Community 1967–70. 9 Minute from Mr J. Smith dated 17 May 1967 to Mr Hogarth, Mr Elliott-Binns, Mr Whitworth, Mr Fearn, Mr Hume. Scottish Executive File SOE 3/507 Implications of Joining the European Economic Community 1967–70. 10 Minute from R.E.C. Johnson 18 May 1967. To: Mr Hogarth. Copies to Mr Elliott-Binns, Dr Smith, Mr Fearn, Mr Whitworth, Mr Hume. Scottish Executive File SOE 3/507 Implications of Joining the European Economic Community 1967–70. 11 HMSO 1973a: 5, para. 1. 12 Ibid.: 5, para. 13. 13 Ibid.: 127, para. 413.

148 Notes 14 15 16 17 18 19 20 21 22

HMSO 1973b: 48, para. 112. Ibid.: 49, para. 112 (f) (i). Ibid.: 49, para. 112 (f ii). Ibid.: 110, para. 284. Ibid.: 111, para. 287. Ibid.: 49, para. 112 (f). HMSO 1975: 18, para. 87. Ibid.: 19, para. 92. When the Scotland Bill came before MPs in November 1977 relations with the EEC remained in the hands of central government. It was stated under para. 62 of the Bill: To the extent that a matter involves the conduct of relations with any country outside the United Kingdom it is not a devolved matter. (3) If it appears to a Minister of the Crown – (a) that the implementation of a Community obligation or any other international obligation of the United Kingdom requires the exercise of any power to make a subordinate instrument; and (b) that the power could be exercised by a Scottish Secretary; but (c) that it is desirable that it should be exercised by a Minister of the Crown He may exercise the power as if the matter with respect to which it is desirable were not a devolved matter. (Scotland Bill, 4 November 1977, Part V, Devolved Matters and Determination of Questions Relating Thereto, B 2, p.29)

23 Letter from J.A. Ford dated 23 November 1971 to D. Kirkness esq., Civil Service Dept, Old Admiralty Building, London W.C. 1. File SOE 2/49 European Economic Community. Common Market Staffing Implications. 24 Minute of meeting of Heads of Departments held in St Andrew’s House on Monday 21 February 1972, Minute dated 24 February 1972, File SOE 2/49 European Economic Community. Common Market Staffing Implications. 25 HMSO 1975: 18, para. 89. 26 Interview 14/06/94. 27 It should be stressed that the example referred to by Bulmer et al. (2000) related to MAFF and the inference from their perspective on ‘consultation failures’ was that this was a relatively rare occurrence. 28 HMSO 1969a: 10, para. 22. 29 Ibid.: 10, para. 23. 30 Ibid.: 15, para. 65. 31 Ibid.: 15, para. 66. 32 Ibid.: 18, para. 110. 33 Interdepartmental meetings would comprise those departments which had an interest in the matter for discussion. So far as EU affairs were concerned, an official from the ‘lead’ department would normally chair them. 34 Interview 13/10/95. 35 HMSO 1969a: 14, para. 55. 36 Interview 15/05/95. 37 For example, one senior official responded when asked about it in 1999 as follows: I am not sure about rank being an issue concerning Scottish civil servants and their colleagues in London. In my experience we could have an advantage as we had a much wider view than those in London since we would be dealing with eight or

Notes 149 nine Whitehall departments and we would therefore be aware of the wider impacts of policy proposals. As Scottish officials we could bring a wider view to interdepartmental meetings. (Interview 17/11/99) 38 In England and Wales, 68.7 and 66.5 per cent respectively were in favour, whereas the figure for Northern Ireland was only 52.1%, D. Butler and U. Kitzinger, The 1975 Referendum (London: Macmillan, 1978) cited in Keating and Waters 1985: 61). 39 These figure are based on those reported in The Times on 7 June 1975 on pages 1 and 2. Rather confusingly, there was no separate breakdown for Scotland (as a single entity) in percentage terms although the paper published the votes for and against in Scotland, Wales, England and N. Ireland. 1,332,186 Scots voted yes and 948,039 voted no. The total that voted came to 2,280,225 and therefore the percentage in favour stood at 58.4. 40 For a fuller analysis of the 1975 referendum and its resonance for Scottish politics refer to Mitchell 1996: 162–164. 41 The Times 09/05/75, SNP opens its campaign for Scottish ‘no’ vote, R. Faux, p. 5. 42 The Times 02/06/75, ‘Tribune’ group MP asks party to discipline Mr Wilson for violation of anti-Market policy, H. Noyes, p. 3. 43 See Pilkington 1995: 205–206 on the Liberals and the SDP and p. 216 on the Conservatives. According to The Times Index the Scottish Conservatives were also in favour of the EEC at their conference in May 1975 (The Times Index 1975, for 16 May, pp. 2f.). However, as Nicoll and Salmon point out, there were some in the Liberal and Conservative parties who were opposed to continuing membership of the EEC in the 1975 referendum (Nicoll and Salmon 1990: 152). Thus, to some extent, divisions over Europe cut across the political divide. 44 Fry and Cooney, 1979: 3. 45 The Times 31/05/75, Scots ‘could send envoy to EEC’, staff reporter, p.4. 46 Sillars 1986: 185. 47 See Lynch 2002: 185–187, for further background analysis and its implications for the SNP. 48 Pilkington 1995: 216–217. 49 Nicoll and Salmon 1990: 167. 50 Ibid.: 158. 51 ‘This can be attributed to a number of factors not just Labour’s third election defeat in a row. These included recognition of the interdependence of the economies of European countries as well as the increasingly socialist tendencies of the EEC under Jacques DeLors’ (Pilkington 1995: 214–215). 52 ‘Just as we support decentralising power in Britain, we want power to be decentralised in Europe, and believe that the Committee of the Regions is an important step to strengthening regional interests’ (Labour 1994: 5). 53 ‘The Scottish Parliament would have the right to be part of, and where appropriate leading, UK delegations to the Council of Ministers’ (ibid.: 5). 54 Martin explained: I would like this function to be taken over by a kind of ‘European Senate’ – the best term that I can find for this – in which countries like Luxembourg, Malta, Cyprus would have one seat, but countries like Germany, France, the United Kingdom might have perhaps 10. That being the case, once we move to that structure, there’s no good reason why the representation could then not be drawn from the subMember State level of government; from the German Länder or the Spanish autonomous regions or, in the United Kingdom’s case, from Scotland, Wales, Northern Ireland and the regions of England. (Martin 1993: 154)

150 Notes In his view such a development was a significantly better option than the SNP’s advocacy of an independent Scotland in Europe. He maintained: A worrying trend in Scotland is that the Scottish National Party (SNP) wants to counter the centralising nature of Westminster by locking itself into the corrupt anti-democratic set up in the EC; it wants to jump out of the London frying pan into the Brussels fire. (Martin 1989: 84) 55 There were a number of concerns voiced at the conference, especially relating to ceding more power to Brussels leading one delegate to complain: ‘Europe is our flagship policy. It is far too important to be dealt with by a mish-mash of statements which leave us facing different directions at once’ (The Scotsman 22/09/95, Doubts Emerge Over Policy on Europe, P. MacMahon, p.8). These fears led to the SNP setting up a working party to examine its European strategy. In the aftermath of the 1995 conference some commentators have been even more critical. Lynch argued that: ‘Since the Maastricht Treaty and its conference in 1991, the SNP has lost the initiative over Europe and lost the ability to use the European issue to propel constitutional change’ (The Scotsman 29/09/95, Independence Goal Flounders on Europe’s Doorstep, P. Lynch, p. 14). Stephen Maxwell, a former press officer for the party, confirmed that the Euro-sceptic faction within the SNP had originally, ‘warned that this position would be difficult to sustain’ (The Scotsman 03/10/95, Letters, p. 12). 56 Scottish Office, 1991c, Speech by the Secretary of State on Scotland and Europe to the Scottish Young Conservatives Business Group on February 25 1991. 57 Scotland cannot rely solely on the strength of the United Kingdom Permanent Representation, impressive though it is, to make the most of Europe. And we cannot allow being part of Britain in Europe, with all the advantages it brings, to at the same time restrict the evolution of our own Scottish profile within the Community [. . .] We have our own strengths and we must play to them. That demands a multipronged approach by Scotland to Europe. I think it will always be necessary to look beyond the existing structures of Europe to see if there are additional ways in which Scotland’s interests can be advanced. (Scottish Office, 1992, Speech by the Secretary of State on Scotland’s place in Europe, addressing a joint meeting of the University of St Andrew’s Conservative Association and the University of St Andrew’s European Society on 23 November 1992) 58 For example, the Resolution of the House of 17 November 1998 included the following reference to titles V and VI of the EU treaties. It stated: No Minister of the Crown should give agreement in the Council or in the European Council to any proposal for European Community legislation or for a common strategy, joint action or common position under Title V or a common position, framework decision or convention under Title V1 of the Treaty on European Union: – (a) which is still subject to scrutiny (that is, on which the European Scrutiny Committee has not completed its scrutiny). (House of Commons, 2001, The European Scrutiny System in the House of Commons, p.45) 59 The SFF used to undertake such lobbies in tandem with other fishing organisations bordering the North Sea.

Notes 151 60 Kellas 1977: 177. 61 Yet the way in which the Union currently works does not allow for adequate interaction in a multi-level partnership; a partnership in which national governments involve their regions and cities fully in European policy-making. Regions and cities often feel that, in spite of their increased responsibility for implementing EU policies, their role as an elected and representative channel interacting with the public on EU policy is not exploited. (The European Commission, European Governance, 25 July 2001, COM (2001) 428, Brussels, 2001) 3 The chimera of multi-level governance 1 Neal Ascherson, speaking at the fifth sovereignty lecture in Edinburgh, Cited in C. Bartie, political assistant to David Martin MEP, in Scotland in a Europe of the Regions, 1 May 1998. 2 See for example, Gerstenlauer 1985 and 1995, Jones and Keating 1995, Keating and Jones 1985, Jeffery 1997a, Börzel 2002, Bourne 2003. 3 J. Delors, A Necessary Union in B.F. Nelsen and A.C-G. Stubb (eds) Readings on the Theory and Practice of European Integration, Boulder: Lynne Rienner, 1994. 4 However, refer to note 38 in chapter six, which discusses this further. 5 According to notes of a meeting at St Andrew’s House on Friday 1 December 1972, this was the view of Sir Douglas Hadddow, then the permanent Under Secretary of State – although he also believed that ‘there were many other matters of substance in which the Scottish Office would have an interest’ – some of which were mentioned in the previous chapter (Scottish Office File SEP 4/2786). 6 CPMR 1993: 3. 7 The 23 founder regions were from Germany, France, UK, Denmark, Ireland and Italy, Ibid.: 3. 8 Interview 06/10/94. 9 Interviews 06/10/94 and 16/10/95: CPMR 1992: 5. 10 Interviews 06/10/94 and 16/06/95. 11 CPMR 1993: 15. 12 Strathclyde Regional Council, RCEMG599, European and International Activities of the Council, report by the Chief Executive, Policy and Resources, European and International Affairs Committee, undated. 13 European Union rests on the principle of subsidiarity, as is made clear in articles A and B of title I of the Treaty of European Union. This principle contributes to the respect for the national identities of Member States and safeguards their powers. It aims at decisions within the European Union being taken as closely as possible to the citizen. (European Council 1992: 6) 14 Subsidiarity is first and foremost a political principle, a sort of rule of reason. Its function is not to distribute powers. That is for the constituent authorities – the authors of the Treaty. The aim of the subsidiarity principle is, rather, to regulate the exercise of powers and to justify their use in a particular case. The Treaty on European Union simply makes a distinction between exclusive and shared competence without specifying the limits. In the new areas, the Treaty carefully establishes case by case a dividing line between matters that may be covered by Community measures in a given area and matters that must be left to the Member States.

152 Notes The Report then explained the principle’s ‘consequences’: Community competence is not the rule but rather an exception to national competence; in other words, the Community must have powers specifically conferred on it; – far from having an effect of freezing Community action, the dynamic of the subsidiarity principle should make it possible to expand it if required, or limit or even abandon it when action at Community level can no longer be warranted; – the regulatory role of subsidiarity, for which need-for-action is the criterion, applies to shared competence only; it cannot be used as a pretext for challenging measures in areas such as the internal market where the Community has a clearly defined and undeniable obligation to act. (European Commission 1993, COM (93) 545 final, Commission, Brussels, 24 November 1993, pp. 1–2) 15 The term ‘governance relates to a change in the meaning of government, referring to a new process of governing’ (Rhodes 1997: 15). 16 For example see Sloat 2002. This work was a snapshot of Scotland and the EU circa 1997–9. 17 Including the author who enjoyed a brief dalliance with it. See, for example, Wright 2003. 18 Institutionally, COR reflects the emerging pattern of governance in the EU whose key dynamics are flexibility, variability, contestation and difficult partnership between several groups and tiers of actors rather than clear separation of powers. [. . .] Successful despite its shortcomings, evidence of the shift towards new and less clearly hierarchical modes of governance, COR is the perfect embodiment of multi-level governance in the European Union. (Warleigh 1999: 57) 19 Instead of a centripetal process where decisionmaking is progressively centralized in Community institutions, in structural policy we see a centrifugal process in which decision making is spun away from member states in two directions: up to supranational institutions, and down to diverse units of sub-national government; instead of the unambiguous allocation of decision making responsibility between national and supranational governments, we see the institutionalizaton of contested spheres of influence across several tiers of government. (Marks 1993: 402) 20 I believe we are witnessing the emergence of multilevel governance in the European Community, characterized by co-decisionmaking across several nested tiers of government, ill defined and shifting spheres of competence (creating a consequent potential for conflicts about competencies), and an ongoing search for principles of decisional distribution that might be applied to this emerging polity. (Ibid.: 407) 21 Perhaps a more straightforward definition is as follows: Governance is hence described as a process of co-ordination of public and private actors, social groups and institutions, in order to attain clear aims, which are debated and defined collectively, in uncertain and fragmented environments. (Le Gales 1998: 243)

Notes 153 22 Governance blurs the distinction between state and civil society. The state becomes a collection of interorganizational networks made up of governmental and societal actors with no sovereign actor able to steer or regulate. A key challenge for government is to enable these networks to seek out new forms of co-operation. (Rhodes 1997: 57) 23 The author wishes to point out that this paragraph’s line of argument was prompted by a conversation with James Mitchell (Professor of Government, University of Strathclyde). Whilst at the time not expressing a view, for or against MLG, he merely observed that some of its tenets were by no means new in relation to discourse on Scottish politics. 24 EU partnership interlocks the European, national and subnational arenas in an immediate fashion. It does not sanction the nesting of the subnational in the national arena, nested in turn in the European arena. Instead subnational authorities are directly involved in EU cohesion policy-making alongside national state actors and the European Commission (and occasionally, the European Parliament). State executives are at most imperfect ‘gatekeepers’ between the domestic and European arena: the fixed territorial boundaries of the national state are permeated by EU partnership. However, the extent of permeation depends on the territorial span, degree and substantive scope of partnership, and these vary greatly across the Union. (Hooghe 1996: 17–18) 25 Another paradox in the current debate on the development towards governance as an alternative to traditional government is that pursuing the collective interest through different forms of governance on and between different institutional levels requires a strong centre. Thus, government and governance are not altogether each other’s opposites; governance can never be successful or give an accurate interpretation of political preferences among the populace unless it involves to a significant extent representative structures and a representative means of translating those preferences into political and administrative action. Only the state can play these roles and only the state can give meaning, objectives and direction to governance. (Pierre and Peters 2000: 198) 26 He observed: Multi-level governance provides us with very little guidance through the complexity and no normative principles such as those that traditionally frame discussion of the state or the institutions of parliamentary democracy. Nor do we really know in discussions of multi-level governance just what the unit of analysis is or indeed at what level the analysis is being conducted. (Keating 2001: 164) 27 Europeanization is limited to the process by which domestic policy areas become increasingly subject to European-policy-making. This process is essentially driven by the transfer of policy competencies from the member-state to the European level (Börzel 2002: 16) 28 As UK SNAs [Sub-National Authorities] were increasingly affected by EU policies, so they began increasingly to redirect their attention outwards to those policies and

154 Notes seek to act in such external matters within the framework of their internal competencies. The scope of this mobilization in respect of external matters is, of course, inevitably constrained by the limited legislative and administrative discretion UK SNAs possess in the exercise of their internal competencies. (Jeffery 1997d: 217) 29 In this instance internationalisation relates to sub-state governments formulating a strategy in relation to international matters which may or may not include the EU. Examples include: global warming and other environmental concerns, international investment by transnational companies and world trade, Aids and global terrorism. It also implies that there has been a degree of internal restructuring in order to pursue the organisation’s internationalist agenda. 30 I.D. Duchacek, 1986, The Territorial Dimension of Politics: Within, Among and Across Nations, Boulder and London: Westview Press; cited in Aguirre 1999: 188. Aguirre, it should be said, was sceptical of the worth of these terms – although he does provide a useful historiography of their origins. 31 The origins of this point can be traced to Professor Michael Burgess, during a discussion with the author in the summer of 2003, albeit that he did not express a view for or against MLG. 32 See, for example, Keating and Jones 1985, Jones and Keating 1995, Jeffery 1997a, Aldecoa and Keating 1999. 4 Scotland and the EU’s structural Funds 1 Glasgow Herald 2/01/73, p. 1. 2 Scottish Parliament 2000: para. 41s. 3 ‘Britain stands to gain extra help for its regions from Community funds when she joins the Common Market,’ Mr Geoffrey Rippon, chancellor of the Duchy of Lancaster said last night,’ a cutting from the Financial Times, 07/09/71; ‘Regions will benefit from EEC’, says Rippon, A. Smith (Scottish Office File 519/Pt A/ SOE 10/73). A draft of a speech for George Younger, then a minister at the Scottish Office was rather more ambivalent: If Britain joins the Common Market she will contribute to the market funds but she will also draw on them. You must excuse me if I use a post-prandial metaphor, but in the case of regional development our joining the market will increase the size of the cake but the position in the kitchen is such that we will not only be consulted on the recipe and the ingredients but also how the cake will be sliced. Mr Younger’s speech notes for George Maclellan Group Centenary Year Dinner – a draft from A. MacLean to Dr McCrone 3 May 1971. Scottish Office File SEP 10/69 Scottish Implication of Entering the EEC. 4 As Rhodes observed in 1974: It should be clearly appreciated that the development of the EC’s regional economic policy is a prime goal of British government policy. British membership involved substantial costs to her balance of payments because of the Common Agricultural Policy (CAP). The development of a regional policy is seen as an important means of off-setting these costs. (Rhodes 1974: 106) According to Keating and Waters, the UK government ‘operated on the principle of non-additionality when ERDF money was available’, and in so doing it therefore ‘deducted an equivalent amount from national expenditure’. The only beneficiary was

Notes 155

5 6

7 8

9 10 11 12 13

local government because when it received an EU grant for a project it saved the cost of interest as it did not have to raise funds for this by borrowing. But ‘no extra spending is possible as these projects must be accommodated within existing capital expenditure’ (Keating and Waters 1985: 75). See also Mitchell 1997: 416. Minute from P.M. Scola dated 16 July 1971. To Dr McCrone, Mr Fraser. Scottish Executive File Sep 10/208 Economic and Statistics Unit. International Affairs: Scottish Implications of Joining the EEC. European Regional Policies. ‘Mr Younger has seen the attached copy of the FO telegrams and has commented.’ Minute from Miss S.H.C. Scott to Mr R.D. Lister, dated 2 August 1971. File Sep 10/208 Economic and Statistics Unit. International Affairs: Scottish Implications of Joining the EEC. European Regional Policies. Palliser’s telegram 2598 of 15 December 1972 – he was a part of the UK delegation in Brussels. Scottish Office File SEP 10/208 ‘International Affairs’. Letter from B.C. Cubbon of the Cabinet Office, July 2 1973 to Dr Gavin McCrone of the Scottish Economic Development Department, ref the UK regional development fund. Scottish Office File SEP/10/209. File Title: International Affairs: Scottish Implications of Joining the EEC. European Regional Policies. John Davies, Minute from the Chancellor of the Duchy of Lancaster, dated 16 February 1973 to the Prime Minister. Scottish Office File SEP/10/209. File Title: International Affairs: Scottish Implications of Joining the EEC. European Regional Policies. Letter from R.G.L. McCrone to Mr Scott Whyte dated 21 February 1973. File SEP/10/209. Scottish Office File Title: International Affairs: Scottish Implications of Joining the EEC. European Regional Policies. Council Regulations (EEC) 724/75 18/3/75 updated by (EEC) No 214/79, (EEC) 3325/80 16/12/80 Council Regulation EEC 1787/84 19/6/84. See also Martin and Pearce 1993: 682. Dinan 1994: 407. The Guide to the Reform of the Community’s structural Funds stated: The Partnership arrangements should also lead to some decentralization of the Community’s structural action, enabling it to be geared more closely to realities in the field, both in assessing needs and in implementing measures. (European Commission 1989: 15)

14 In their written submission to the European Committee of the Scottish Parliament, Dr G. Bristow and Dr N. Blewitt made the following point: The funding relationships between the EU, UK and Wales/Scotland are further complicated by the unique rebate which the UK government receives on its net contribution to the EU budget. This rebate ensures that approximately two-thirds of the UK’s net contribution to the EU budget is returned each year as an abatement to the Treasury. This means that any increase in EU structural Funds for Wales and other parts of the UK, is largely balanced by a reduction in the rebate paid to the Treasury. In effect, this means that the UK government has to spend more of its EU receipts on the regions, whereas when a greater share of EU receipts comes in the form of the rebate, the government has the flexibility to spend this money wherever it sees fit. This provides a potential incentive for the UK government to exercise restraint in the drawing down and spending of available EU funds in the UK. This is significant in providing a potential explanation for public expenditure restraint in ERDF provision and matching finance as part of the block grant. (Scottish Parliament 2000: 125) 15 Interview 23/09/94. 16 Interview 23/09/94.

156 Notes 17 18 19 20 21 22 23 24 25 26 27 28 29

Interview 28/10/94. Interview 28/10/94. See also Bachtler 1997: 83. Interview 21/06/95. Interview 22/06/95. Interview 26/11/94. Interview 07/06/95. Interview 07/06/95. See note 14 above. Interview 07/06/95. Interviews 04/10/96 and 06/11/96. Sussex University European Institute, Record UK/VC 30. For instance, John made the following observation: While national government had publicly climbed down over additionality, it is difficult to know whether it had allocated extra resources to match European funding. Thus, while allowing for additionality in 1992–3, the government reduced credit approvals overall by 25 per cent. Given the many influences on government spending, such as the total amount of money allocated to urban policy, it is never possible to know whether central government regards European programmes as additional to, or substitutes for, national funding. (John 1997: 136)

30 Interview 08/08/94. 31 For further details see Chapter 7, A. Wright (1998), Scotland and the EU: a Case of subsidiarity or Dependency? Unpublished Ph.D. Thesis, . 32 At the time of the inquiry it was referred to simply as the European Committee. 33 Though it has to be said, it was not immediately apparent to the author, who thanks John Bachtler for drawing sections of the report to his attention, (he was the European Committee’s special advisor on the inquiry into EU funds). 34 Scottish Parliament 2000: 19. 35 Ibid.: 19, para. 75 36 Ibid.: 20, para. 26. 37 Ibid.: 23, para. 89. 38 Ibid.: 24, para. 93. 39 See Bache and Bristow 2003: 423–424. The authors also noted however, that ‘there was no change in the mechanisms, through which central government dealt with additionality’ and that there was little to prevent an incoming government from pursuing a different policy regarding the application of the principle. 40 ‘Less bureaucracy and more focus are needed in the EU’s structural Funds, Commissioner Padraig Flynn said last week.’ European Commission, 03/04/97, The Week In Europe. 41 The Times 06/03/03, As the EU expands, we must repatriate some of the power from Brussels, Gordon Brown, p. 20. 42 Although Scottish local authorities viewed this as potentially good because regional aid would no longer be so restricted by red tape (e.g. SOLACE, see note 43) the Welsh had their doubts. A former regional policy advisor to the Wales European Centre warned: If the Treasury ideas win through there would be no Commission presence on any Welsh structural programme to protect regional policy expenditure, let alone ensure additionality. In the aftermath of the political upsets of Objective 1 it is easily forgotten that it was under the last Conservative Government that the 1994–99 EU programmes in Wales were suspended for a suspected breach of additionality. (N. Bennet, Agenda, Summer 2003, The Institute of Welsh Affairs, p.25)

Notes 157 43 Their agenda mentioned a number of strategies concerning the ‘European structural Funds – Long Term Future’. Option 4 read: Lobby Scottish Executive to ‘give back’ the provision originally top sliced (mostly from local authority capital) in 1991 when the current additionality regime was introduced. There is probably a strong moral case for this option but the practicalities and politics almost render it unachievable. (Undated briefing note by SOLACE (Society of Local Authority Chief Executives) which related to a meeting during the early autumn of 2002) 5 1973–1999: a Westminster by-pass? 1 The term by-pass implies that there could be times when Scottish actors could circumvent London completely and deal with Brussels direct. Thus somewhat latently, the term implied that in such instances UK departments could be irrelevant. Usually this was not so, but usage of the term was a sensitive matter from the perspective of the UK government. To the best of the author’s knowledge, the European Commission only employed it once in its literature. An information booklet on Scotland stated: For Scotland the opportunities are immense. The Westminster by-pass leading to Brussels is crowded with Scots going to lobby, keep themselves abreast of events, form their alliances, do their deals and generally act with their customary vigour to make this venture a great success. (The European Commission, April 1994, Scotland. A Region of the European Union, 9490, p. 19) 2 The term lead department refers to that ministry which was responsible for representing the UK in the EU in relation to a particular area of policy. 3 Prior to 1996, there were three categories of councils in Scotland, island councils, district councils and regional councils. The regional councils were responsible for economic planning, they were well resourced and in the absence of a Scottish parliament, they were the most powerful democratically elected bodies in Scotland. These councils were frequently Labour controlled, in contrast to ministers at the Scottish Office, who between 1979 and 1997, were members of the Conservative party, and as such were appointees of the UK Prime Minister. 4 I.e. institutions and/or organisations. 5 Draft copy of letter from A. Ford to Sir David Pitblado circa July 1971, Scottish Office 1971, File SOE 2/49. 6 Letter from J.A. Ford to D. Kirkness esq., Civil Service Dept, Old Admiralty Building, London S.W.1, Dated 23 November 1971, Scottish Office 1971, File SOE 2/49. 7 Draft copy of letter from A. Ford to Sir David Pitblado circa July 1971, Scottish Office 1971, File SOE 2/49. 8 Interview 14/06/94. 9 Interview 18/10/95. 10 This aspect was highlighted by Aitken who observed that amongst the reasons which affected a council’s Europeanisation were: ‘The degree of scepticism held by senior officials and members toward the question of the EEC generally, reinforced by the belief that the benefits which could come from the Community are neither easily accessed nor financially significant.’ And also: ‘The doubt as to whether local authorities could or should attempt to influence Community policy formulation’ (Aitken1981: 81 and 89). 11 Interview 05/10/94. 12 Interview 19/06/95. 13 The UK’s permanent representation in Brussels.

158 Notes 14 Following the third increase on duty in the UK in 1992, the SWA claimed that it briefed more than 30 backbench MPs and that ‘one senior Conservative led a delegation to a private meeting with the Chancellor to support the industry’s case’ (The Scotch Whisky Association 1994, Annual Review 1993, The Scotch Whisky Association, Edinburgh, p. 3). 15 According to the SWA the tax on whisky in Italy, Germany, France and the UK was 39, 44, 47 and 66 per cent respectively c 1993. (Scotch Whisky Association circa 1993, undated leaflet on tax). 16 Interview 06/09/95. 17 Interview 14/09/95. 18 Interview 14/09/95. 19 An official from the Scottish Office’s Environment Department explained: The Scottish Office was not really on the ball on Europe very much in the late to mid 1980s in the case of conservation, though my colleagues along the corridor who deal with water and sewage had been dealing with them for some while. With conservation, it was the only major land-use function where the Scottish Office originally had no responsibility. Instead it lay with the Department of the Environment in London and the Nature Conservancy Council. So, it was all handled centrally and a large part of the 1981 Wildlife and Countryside Act was intended to implement EC Directives. We always had designs on that area. (Interview 06/09/95) 20 21 22 23 24

Interview 17/03/95. Interview 17/03/95. See also Smith 2003. Scottish Office 1991a. The Review stated: It is, however, essential to tell the appropriate lead Department and the UK Permanent Representation to the EC in advance of any direct contacts being proposed, pass on any intelligence gained, use contacts to help advance the UK position and under no circumstances undermine that position. (Ibid.: 7)

25 As far as budgets allow, divisions should increase personal contacts with EC, taking opportunities to participate in Committees in Brussels, and extend visits to allow bilateral contacts to be built up. This should apply to administrators and professionals. (Scottish Office 1991b: 1, 1991a: 6) 26 27 28 29 30 31

Scottish Office 1991a: 6. Ibid.: 6. Scottish Office, 1995, Telephone Conversation with Official in the ECU. Interview 15/08/94. Central Regional Council 1993: 1. For example one official observed: Originally the main priority for Scottish Enterprise and the Local Enterprise Companies was to secure EU Funds but now a more two dimensional approach is being adopted. We must now try to use the Funds effectively and have a policy interface with the EC’s institutions. We need to speak to these people, otherwise you have to live with them dictating the agenda. (EU specialist at Scottish Enterprise interviewed during 1994)

Notes 159 32 Kenneth Munro, then the head of the European Commission’s Office emphasised this dimension in an interview with Scotland on Sunday. The main virtue of Europe or of the community to many Scots must be that it is not Westminster – that it is an alternative focus. This is historically where Scotland’s interests lay, until it diverted its attention for a brief period of time to run the British empire. (Scotland on Sunday 13/03/94, Euro Union dues, S. Bain, Business Week Section, p. 1) 33 Interview 05/10/95. 34 An official from the DTI commented: ‘The DTI does not lobby for a larger slice of funds for any single authority or ministry’ (Interview 23/09/94). 35 The same applied to the Scottish Office. This was especially evident at the project approval stage, which occurs after a region had been awarded funding status under one of the EU’s Objectives. Individual local authorities would then submit their own schemes. But at this stage the Scottish Office perceived that its influence was minimal in relation to the European Commission because the latter’s desk officers were ultimately responsible for permitting or refusing individual applications. An official observed: It would mean someone from the Scottish Office having to negotiate with these people every time there was a problem and we do not have the resources for that. If we only became involved on odd occasions we could run into problems of bias, i.e. supporting one case on behalf of Grampian but not supporting Tayside. (Interview 06/09/95) 36 Interview 28/08/94. 37 This information is based on a written reply by Allan Stewart the Scottish Office Industry Minister to a parliamentary question from Mr McMaster, on 16 June 1992 (Hansard 16/06/92 Col. 516). 38 HMSO 1993: 21. 39 In some respects it is rather borderline. For instance, John argued: To be paradiplomatic . . . offices must do more than collect intelligence and lobby purely on financial matters (a necessary but not sufficient condition); they must represent sub-national interests on policy, liase with central governments and co-ordinate other regional interests in the European capital. (John 1994: 740) 40 Mazey and Mitchell observed how officials at the Scottish Office were concerned that COSLA and the STUC could hold equity in Scotland Europa and that they might lobby against the government’s position on a particular policy (Mazey and Mitchell 1993: 115). The Scottish Office also had other reservations about setting up an office in Brussels, such as that it might antagonise the Foreign and Commonwealth Office or UKRep (Ibid.: 116). The Scottish Office was apparently by no means alone with regard to such concerns. For example, the Federal Foreign Ministry in Germany was also worried that the establishment of such offices for the German Länder risked the latter encroaching onto the ‘federal government’s foreign policy prerogative and in so doing prevent Germany from speaking as one’ (Börzel 2002: 77). 41 Interview 29/10/96. 42 John suggested that the distribution of information was its ‘most important objective’ though the office also lobbied the Commission and the EP (John 1994: 744).

160 Notes 43 A separate representation of the Scottish Office in Brussels is neither feasible nor desirable as it would cut across the unitary nature of the UK government. However, there are attractions in ideas for a ‘Scottish Centre’ in Brussels which would represent Scottish Enterprise and other Scottish bodies but not the Scottish Office. (Scottish Office 1991a: 6) 44 This was an umbrella body for Scotland’s local authorities at the time. 45 See COSLA 1996, Guide to Developing the European Function, Draft 16, COSLA, Edinburgh; COSLA 1996, European and International Affairs Strategic Plan, COSLA, Edinburgh; COSLA 1996, Guide to Developing the European Function, Draft 17, COSLA, Edinburgh. 46 Interview 14/09/94. 47 Interview 22/02/95. 48 Interview 16/01/95. 49 The NFUS was an active participant in COPA and it was a member of the latter even before the UK joined the EEC (Archer et al. 1980: 60). 50 The Scotsman 19/04/96, Call for prime beef ‘passport’, F. Urquhart and F. Cunningham, p. 4. 51 The Scotsman 02/11/96, Forsyth sees no end to ‘illogical’ beef ban, staff reporter, p. 9. 52 The Scotsman 22/05/96, Major to wage war over beef, G. Duncan and J. Booth, p. 1. 53 This is referred to in chapter two. 54 Interview 19/06/95. 55 Interview 19/06/95. 56 Some interests such as the NFUS were quite content with this, as they believed that there was little point in going to an ‘English’ minister at the lead department in London. If they did need to bring pressure to bear on the centre then the respective national farming organisations would mount a joint lobby. A senior figure in the NFUS explained: We would never dream of lobbying MAFF in London though we might all go there for a briefing or meeting with our colleagues in England, Wales and Ulster. If we were to lobby Whitehall that would alienate our own contacts in Scotland, i.e. the Secretary of State and SOAFD. We would severely weaken our position because it would be harder to get a sympathetic reception next time. There is also the advantage that if all the NFUs in the UK lobby their respective ministers in the UK then it reinforces our case. There would be no point in going to an English minister; he would not be interested in a Scottish issue. (Interview 29/11/94) Other rural interests were less content with this. For example, on one occasion the Scottish Crofters Union wanted to respond directly to MAFF in London but was instructed to do so via the Scottish Office. Its then director, observed: Waldegrave [then a UK minister] set up a think tank and Hogg is now responsible for this but when we wanted to meet Hogg in order to provide him with our input into this think-tank, or his civil servants in MAFF, we were referred back to SOAFD. (Interview 16/10/95) 6 1999: business as usual? 1 Scottish Parliament, Official Report, Minutes of Proceedings, 10 November 1999, Vol. 1, No. 30, Session 1 1999, col. 439.

Notes 161 2 For a fuller discourse of Scotland’s governmental arrangements circa 2000 refer to Lynch 2001, which at the time of writing is in the course of being up-dated. Since the first edition was published, the UK government decided that the Scotland Office’s work would be subsumed within a new government department – the Department for Constitutional Affairs, which would be headed by Lord Falconer. For a brief period it appeared that Scotland would no longer have its own Secretary of State but it was finally decided that Alistair Darling, who held the portfolio for transport, would also be responsible for Scottish affairs. Thus, for the moment, Scotland still has representation in the UK Cabinet. 3 ‘International relations, including relations with territories outside the United Kingdom, the European Communities (and their institutions) and other international organisations, regulation of international trade, and international development assistance and cooperation are reserved matters’ (Scotland Act 1998, Schedule 5, Part I, 7 (1)). 4 Salmon 2000. 5 The Convention was established in 1989, as a precursor to devolution, an underlying intention being to examine a range of practical issues such as the number of parliamentarians and the electoral system. In 1989 it published a document within which there was the following section on the EU: Scotland’s parliament should establish a representative office in Brussels to facilitate relations between itself and European Community institutions. There should be a statutory entitlement for Scotland’s parliament and/or Executive to be represented in UK Ministerial delegations to the Council of Ministers. (Scottish Constitutional Convention 1989: 14)

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

See also Dunion, 1995. According to Bulmer et al., this issue was one of the ‘more controversial debates’ when the EU concordat was being formulated but: ‘This was successfully resisted by Whitehall on the basis that it would undermine the reserved status of UK European policy and could undermine the strengths of the UK bargaining in that Council’ (Bulmer et al. 2002: 49). Scottish Office, 1997, Cm 3658 Scotland’s Parliament. Scottish Office, 1997, Cm 3658 Scotland’s Parliament, 5.4. Scottish Office, 1997, Cm 3658 Scotland’s Parliament, 5.6. Memorandum of Understanding and supplementary agreements between the United Kingdom Government, Scottish Ministers and the Cabinet of the National Assembly for Wales, SE/99/36, 1999. Ibid. Ibid. Agreement on the Joint Ministerial Committee, A1.9, 1999. Ibid.: A1.10. This work is derived from A. Scott (2001), The Role of Concordats in the New Governance of Britain, Edinburgh Law Review 5:1, 2001, pp. 21–48, cited in Bulmer et al. 2002: 37. Concordat on co-ordination of European Union Policy issues B1.3 and B1.4. Ibid.: B 3.13 and B3.15 HC Deb., Vol. 312, col. 193, 12.5.98, in Winetrobe 1999. HL Deb. 588, cols 1,131–2, 21.4.98, in Winetrobe 1999. R. Rawlings, ‘The New Model Wales’, (1998), Journal of Law and Society, 25, pp. 502–503), in Winetrobe 1999. Though that is not to say that a particular committee might call for the concordats to be up-graded and formalised. One such example was the then European Committee’s 9th Report, Report on the Governance of the European Union and the Future of Europe: What Role for Scotland? 2001.

162 Notes 21 2nd Report of 1997–98, Scottish Affairs Committee report on multi-layer democracy, HC 460–1, in Winetrobe 1999. 22 The UK government proposed during 2003 that devolved matters should no longer fall within the remit of the Judicial Committee of the Privy Council but within a newly created Supreme Court. However Lord Falconer, the newly appointed Lord Chancellor, affirmed that the new court would not encroach on the power of Westminster. He said: You don’t want a court that can strike down what the UK parliament says. We’re not going down that route here because we think the right constitutional settlement is to leave the UK parliament supreme. The position is currently that where there is a dispute as to whether or not it’s a Westminster matter or a devolved matter, is currently dealt with by the Judicial Committee of the Privy Council. We think the right course in relation to that [. . .] is that power should be transferred to the Supreme Court of the United Kingdom. It wasn’t given to the House of Lords because it was felt wrong that Parliament should be resolving issues about whether it or the Scottish Parliament has the right powers. (Interview with BBC Scotland, cited in The Herald 15/07/03, SNP on attack as plans for Supreme Court are unveiled, D. Summers, p. 6) 23 24 25 26 27 28 29 30

Interview 8/11/99. Interview 17/11/99. Interview 17/11/99. House of Lords, Select Committee on the Constitution, Devolution: Inter-institutional Relations in the United Kingdom, HL Paper 147, Evidence Complete to 10 July 2002, 2002, col. 216. Ibid.: col. 221. Ibid.: col. 225. Ibid.: col. 236. However, the Scottish Secretary of State would probably be a participant, even after the reforms of 2003.

31 One notable feature affecting the way things have developed so far is the underlying assumption that pre-devolution arrangements for handling EU policy-making worked well and that everything should be done to preserve these. This way of thinking has greatly affected the detailed articulation of the whole post-devolution approach to EU policy-making and the ways in which this has been put into practice. (Bulmer et al., 2002: 163) And:

32 33 34 35 36

However, there was no suggestion that devolution required any fundamental change in the underlying mechanics of the UK European policy process. Current UK policy procedures were deemed to be both internally efficient and externally effective. (Ibid.: 41) House of Lords 2003: 13, para. 23. Ibid.: 15, para. 24. Ibid.: 15, para. 25. Ibid.: 5, para. 1. Trench observed: Much about the conduct of inter-governmental relations in the UK remains ad hoc and driven by process. On one level ministers tend to produce bland reassurances about how good relations are, dependent largely on the fact that they can usually reach agreement with party colleagues about matters they are asked to resolve. On

Notes 163 another, civil servants toil in obscurity to resolve highly technical problems in ways few outsiders can understand. This has worked well so far, and is likely to continue to work up to a point. That point will be reached when a devolved administration determines to do something that is materially different to what the UK government proposes that materially affects UK-level policy or its presentation, perhaps because the devolved administration does not share the outlook and approach of the UK government. (Trench 2003: 165) 37 This reference is taken from endnote 93 of p.182 in Bulmer et al. (2002), which in turn relates to a line or two in the main text on p.60 in which they refer ‘to less than adequate consultation’ which may be simply no more than ‘teething troubles’. Whether the devolved administrations can do anything about that remains to be seen. 38 The meaning of the term political authority is potentially vague. In the context of this book it relates to ‘power’ and ‘influence’. For those who may be interested the author offers the following discourse on their usage herein. Individuals can occupy a position of influence if they have the authority either to allocate resources, or to direct and control others in their society (Bentham 1843 112). In this instance, authority relates to Weber’s interpretation; namely legitimate authority that is derived from the rule of law (Weber 1919: 112). Furthermore, influence can either be an action – ‘a generalized mechanism of persuasion’ (Parsons 1969: 266) – or it can be treated simply as the product of that action. ‘If the individual deviates from the predicted path of behaviour, influence has occurred, and specifically that it is influence which has induced the change’ (March 1955: 168). Whilst influence might lead to change, equally it may prevent change from occurring, thereby maintaining the status quo. Interests may seek to influence those in authority so that laws either suit their needs or do not threaten their welfare. Equally they may wish to influence others in society. In that instance influence may be dependent on persuasion rather than the use of legal authority. It implies that the actions of an organisation or individual have had an effect on the activities, attitudes or behaviour of others. This could occur because the ‘influencers’ have resources on hand which they can use as leverage. In order to influence someone or something (for instance governmental decision-making) individuals might adopt ‘push and pull strategies’ involving coercion and reward; for example they can threaten to vote for the opposition at the next election. They could adopt a variety of other strategies, ranging from ‘persuasion ‘strategies’ based on the promotion of rational arguments, to ‘preventative and preparatory strategies’ which include coalition building and networking (Hosking and Morely 1991: 144–145). Thus influence is an action(s) which results in a change of outcome had that action not occurred. Influence is closely related to power but they are not necessarily one and the same. For instance, if one actor influences another it might seem that at that particular moment the former is more powerful than the latter, implying that the relationship between the two is one of domination and dependency. The weakness in that perspective is the assumption that the actor who was influenced had no option but to comply. It is perfectly possible that he was in a position to decide whether or not he should be influenced. Although political dependency refers to those who are subject to policies and decisions over which they have minimal control, it does not necessarily imply that they will abide by those policies. But in practice those who have legal authority have more power than others who are subject to their control, providing the former have the capacity to enforce the law. On that basis those who exercise supreme authority over a given territory have most power in a political system. Where such a political system comprises a hierarchy of governmental bodies, those lower down can be dependent on the upper tiers. However, the centre (where supreme political authority usually resides) may choose to re-distribute its power vertically or horizontally to other governmental bodies (Calvert

164 Notes 1975: 6). That can lead to the devolution, decentralisation or deconcentration of authority, as well as its transfer upward to a supranational tier of government. Although the terms decentralisation, deconcentration and devolution supposedly all have distinct meanings, actually defining them is far from simple because of the way that they have been used – this is particularly apparent when we consider the differences between their French and English usages (Goin 1991: 10–11, Bradley 1975: 91). In France déconcentration relates to the redistribution of authority within the ‘same hierarchy’, whereas décentralisation occurs when ‘the powers of decision are conferred on agencies and organs outside the central hierarchy’ (ibid.: 91). As a consequence, the French version of decentralisation can coincide with the English usage of devolution (Goin 1991: 11). Yet, according to Bradley, there is no exact definition of devolution in its English usage (Bradley 1975: 92). One interpretation of decentralisation is that it merely refers to the relocation of government functions outside London. For instance the DVLC at Swansea is an example of decentralisation. However, J.H. Robertson, a former Private Secretary to the Head of the Civil Service and Secretary of the Cabinet, maintained that it can apply to the allocation of tasks to regional as well as functional authorities (see HMSO 1968: 1,066, para. 136c). Smith viewed it as the ‘territorial distribution of power’, so it is the antithesis of the concentration of authority. ‘In the study of politics decentralization refers to the territorial distribution of power. It is concerned with the extent to which power and authority are dispersed through the geographical hierarchy of the state, and the institutions and processes through which such dispersal occurs. Decentralization entails the subdivision of the state’s territory into smaller areas and the creation of political and administrative institutions for those areas’ (Smith 1985: 1). According to Smith decentralisation relates to the ‘delegation’ of a degree of authority and it can embrace both the ‘dispersal’ of administrative responsibilities and the delegation of political power. In a unitary state the delegation of political authority involves the devolution of power to a territorial government by a ‘legislative enactment’, whereas in a federal system the constitution delineates political power between the centre and the territorial government (ibid.: 8–9). The Royal Commission on the Constitution described federalism as ‘states sharing sovereignty with the United Kingdom’, whilst devolution was ‘the delegation of central government powers without the relinquishment of sovereignty’ (HMSO 1973a: 165, paras. 542 and 543). The (then) government of Scotland, according to the 1975 White Paper on devolution, was an example of decentralisation (albeit that other government papers have referred to this as administrative devolution – see note 3, chapter one). It stated: ‘That is, the practice whereby large areas of government work for Scotland are carried out not in London but Edinburgh, under Ministers answerable to Parliament at Westminster but nevertheless distinctively Scottish’ (HMSO 1975: 4, para. 12). So, from this perspective, decentralisation therefore refers to the territorial redistribution of administrative functions and it may lead to the delegation of political power to subsidiary tiers of government. Nevertheless, under a decentralised system of government, executive power still resides at the centre and decentralised organs of government have little if any autonomy. They do not have the authority to determine policy, that remains ‘within the framework of collective Ministerial responsibility’ – i.e. the Cabinet (ibid.: 55, para. 279), instead they merely possess sufficient power to administer the application of government regulations. Devolution on the other hand intimates that some authority has been transferred from the centre to a subsidiary tier of government. Goin suggested that: ‘Devolution differentiates statutory activities and entrusts some of them to administrations at a local level, which enjoy a freedom of action. Although the central control does not disappear, it is not however directly involved in the management of the activities. The Central Power only controls the way in which devolved authorities deal with their activities’ (Goin 1991: 11). Devolution therefore implies that the centre retains overall ‘political authority’ over subsidiary tiers of government, though the latter possess more autonomy

Notes 165 than they would under a decentralised system. In essence devolution can take a number of forms; there can be executive devolution, administrative devolution and legislative devolution. Executive devolution occurs when a ministerially controlled body is given a degree of autonomy from the centre. It relates to territorial departments of government possessing the ‘power to take decisions over a wide range of executive matters’ (HMSO 1973a: 377, para. 1,256). Administrative devolution means that governmental bodies themselves have some autonomy from their counterparts in the national government over the formulation and/or the implementation of policy. Legislative devolution implies that there is some form of sub-national legislature, which has the authority to create its own legislation in a range of policy fields. It is where legislative devolution occurs that the term devolution is most applicable, as is the case with Catalonia, which has its own legislative assembly. That aspect of devolution was recognised in the 1975 White Paper: Decentralisation remains a useful means of ensuring that administration in Scotland and Wales is founded on an understanding of the needs and wishes of these countries. [. . .] The Government believe however that something more is needed – the creation of elected as well as administrative institutions distinctive to Scotland and Wales. This is what devolution means. (HMSO 1975: 4, paras. 13 and 14) And: This means an elected Scottish Assembly, which can determine its own priorities, pass its own laws and oversee the work of government. Scottish institutions and practices will be largely in the care of a purely Scottish body directly answerable to the Scottish people. (Ibid.: 8, para. 30) Thus devolution occurs when a subsidiary tier of government has the authority to formulate and create its own legislation. It has the authority to manage and administer the affairs of a distinct territory and it has its own legislature, to which its ministers are accountable. In turn that legislature is accountable to the people within that territory. At the same time the centre remains in overall political authority; that is where sovereignty (formally) resides. It has the power to decide how much authority is transferred to subsidiary tiers of government and which fields of policy those subsidiary tiers will be responsible for. In some respects deconcentration lies somewhere between decentralisation and devolution on the basis that it intimates that subsidiary tiers of government have a degree of autonomy. Although central government may exercise supreme authority in a unitary state, subsidiary tiers of government could have a certain amount of discretion at their disposal when they discharge their functions. Equally, the division of functions between the governing institutions within a political system can contribute to the deconcentration of power. Conversely if there is a high degree of centralisation of decision-making even though some administrative functions may have been decentralised, the net effect is that power can be effectively concentrated in a single body or individual (some might say that this is so with the British Cabinet and the Prime Minister). Yet there is also the hypothesis that there can be no absolute concentration of power in a pluralist system of government. That in turn is connected to the premises that there is no single locus of authority in the EU (see chapter two) and that the current era, is post-sovereign and/or post-statist (see chapters one and ten). Even so, this work argues that in terms of the structures of power, Scotland continues to be relegated to political dependency, inasmuch as EU law has direct effect in the UK, and the UK government retains its status as gatekeeper to the Council. Hence to no small extent, ‘political authority’ continues to reside with the UK government and increasingly with Brussels, rather than with Holyrood – despite the constitutional reforms of 1999.

166 Notes 39 40 41 42

Structures of power refers to the loci of ‘political authority’ – see note 38, above. Bulmer et al. 2002: endnote 94, p.182. HMSO 1993. Others include: the formation of the Scottish Office, the creation of a Secretary of State for Scotland who eventually secured a seat in the UK Cabinet, and, administrative devolution.

7 Territorial mobilisation in the EU and beyond 1 He was speaking at a seminar on Scotland and Europe arranged by the Scottish parliament, February 2001. 2 The EDP concept is well summarised by Jeffery as follows: This is based on the argument that EU policy is no longer foreign policy in the traditional sense, but with the growing scope of European legislation with direct effect in the member states has, adopted the character of domestic policy. The Länder have consequently claimed rights in shaping this European Domestic Policy equivalent to those extensive rights they possess in ‘traditional’ domestic policy. This concept is essentially introspective, focused on the European-policy role the Länder can play within and through the member state of the FRG, although the concept can of course be transferred to other member state environments. (Jeffery 1997b: 56) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31

Ibid.: 60. Gerstenlauer 1985: 176. Ibid.: 177–180. Gerstenlauer 1995: 196. Ibid.: 197, Börzel 2002: 66. Gerstenlauer 1995: 198–199. Ibid.: 201. Ibid.: 202. Jeffery 1997b: 66. Ibid.: 67. Gerstenlauer 1995: 207. Article 79.2 Basic Law for the Federal Republic of Germany, promulgated by the Parliamentary Council on 23 May 1949, the version in effect since 15 November 1994. Jeffery 1997b: 73. Börzel 2002: 75. Ibid.: 75. The author has copied Kerreman’s usage of this term due to the mix of community councils and regional administrations in Belgium. Hooghe 1995b: 147. Ibid.: 148. Ibid.: 148. Ibid.: 144. Ibid.: 154. Ibid.: 149. Kerremans and Beyers 1997: 44. Ibid.: 45. Ibid.: 45. Kerremans 2000: 42. Ibid.: 53. Ibid.: 56. Morata 1995: 116–117.

Notes 167 32 That this was so was due to ‘Pujol’s (the head of the Catalan government) privileged relationship with the central government after the national elections of 1993 and 1996 (Keating 2001b: 190). 33 Ibid.: 191. 34 Morata 1995: 118–119. 35 Ibid.: 120; see also Börzel 2002: 104. 36 Börzel 2002: 126. 37 Ibid.: 99. 38 This author is not entirely sure exactly which chamber this refers to, there being a Congress of Deputies (lower house) and a Senate (the upper house). More than likely, as the term ‘parliament’ was used, it refers to the lower house. 39 Ibid.: 132. 40 Ibid.: 129. 41 Bourne 2002: 11. 42 H. Kilper. and R. Lhotta, 1996, Föderalismus in der Bundersrepublik Deutschland, Opladen: Leske and Budrich, cited in Jeffery 1997b: 64–65. 43 Jeffery 1997b: 64. 44 Loughlin 1997: 149. 45 These points are based on a presentation given by C Jeffery at a workshop at the University of Hull from 15 to 16 September 2000. 46 Jefffery 1997b. 47 Political declaration of the constitutional regions Bavaria, Catalonia, North-Rhine Westphalia, Salzburg, Scotland, Flanders and Wallonia on the strengthening of the role of the constitutional regions in the European Union, 28 May 2001 Brussels, http://www. flanders.be/public/authority/search/index 48 Resolution, Second Presidential Conference of the Regions with Legislative Power, Liège, 15 November 2001. 49 To use Jeffery’s words as cited in Börzel 2002. 50 Keating 1999: 4. 51 Ibid.: 5. 52 Ibid.: 5. See, for example, the reference above to Jordi Pujol in Nations Against the State (Keating 2001b: 193). 53 Ibid.: 5. 54 Foreign ministries have, not surprisingly, looked askance at regional activities abroad, seeing them as a breach of the united diplomatic front, and they go to immense lengths to control them (Keating 1999: 13). 55 Balthazar 1999; 157. 56 According to Balthazar, Quebec sent its own representatives to other countries before the Canadian government decided to do so. For example, a representative of the Quebec government was sent to Paris in 1882 and missions were established in London and Brussels in 1908 and 1915 respectively (ibid.: 157). 57 Ibid.: 155. 58 Ibid.: 153–155. 59 Ibid.: 158. 60 Ibid.: 158–159. 61 Ibid.: 164. 62 Ibid.: 166–168. 63 Ibid.: 165. 64 Keating emphasised however that this did not amount to the abandonment of economic promotion per se, as Quebec could participate in the federal government’s Team Canada trade missions. He also observed that ‘the protodiplomatic mission of convincing the world of Quebec’s national aspirations, was not abandoned, with representation in Paris remaining crucial to this’ (Keating 2001a: 129). 65 Bourne 2000.

168 Notes 66 Kerremans. and Beyers 1997: 43. 67 This however can be no more than a ‘speculative conclusion’ to use Jeffery’s words (in a different context) from The Regional Dimension of the European Union (1997). The reason it is speculative in this instance is that no comparison has been made in this chapter with more centralised states such as France or Ireland, for example. However, see Bourne 2003. 8 2003: A Scottish foreign policy? 1 The Herald 10/12/91 Interview with D. Dewar, A. Kemp and G. Parkhouse, p. 8. 2 Strictly speaking the term legislative devolution should apply, but for the sake of simplicity just devolution will be used herein – as was mentioned in an earlier note in chapter one. 3 Though not, it should be said, ‘a bare knuckle ride’ as was the case for Northern Ireland – see for example R. Wilford and R. Wilson, A Bare Knuckle Ride: Northern Ireland, in R. Hazell (ed.) The State and the Nations. The First Year of Devolution, Thorverton: Imprint Academic, 2000. 4 During the first four years the parliament convened on the ‘Mound’, as Holyrood was under construction but the latter is referred to throughout for simplicity. 5 Scottish parliament, minutes of proceedings, Vol. 1, No. 30, Session 1, Meeting of the parliament Wednesday 10 November 1999, cols 469–470. 6 Scottish parliament, minutes of proceedings, Vol. 1, No. 30, Session 1, Meeting of the Parliament Wednesday 10 November 1999, col. 439. 7 He died in the autumn of 2000. 8 Introductory Report by Mr Jim Wallace QC MP MSP, Deputy First Minister and Minister for Justice, Scotland, CLRAE Conference of Presidents of Regions with Legislative Powers, 23–24 November 2000, Barcelona. 9 Sunday Herald 03/12/00, D. Fraser, p. 2. 10 ‘One of the great benefits of devolution is that we can have a clear Scottish position in these matters and still be a part of the UK delegation that carries so much clout in Europe. It is about making sure that Scottish influence, first of all, is exercised’ (The Times, 05/12/00, F. Nelson, p. 16). 11 Scottish Executive, News Release: SE3124/2000 4 Dec 2000 (re Mr McConnell) and Scottish Executive, News Release: SE3122/2000 4 Dec 2000 (re Mr Stephen). 12 Holyrood Magazine 23/04/01, p. 21. 13 Sunday Times 08/04/01, McLeish Sets Up World Wide Diplomatic Corps, K. Farquharson, p. 2. 14 For example: The Herald 11/01/01, Westminster Knives are Out for McLeish after Stupid Gaffe, C. MacLeod and R. Dinwoodie, p. 1. Sunday Times 24/06/01, McLeish’s Euro Deal upsets Westminster, J. Robertson, p. 2. 15 Sunday Times 07/04/02, K. Farquharson, p. 5. 16 The author was present at the meeting and put the question to both ministers. 17 Joint submission by Scottish Executive and COSLA to the European Commission, March 2001: Appendix A 18 Sunday Times 07/04/02, K. Farquharson, p. 5. 19 Scottish Executive, News Release SEFM043/2002, 09/07/2002. Call for Transparency in European Governance. 20 Scottish Executive, News Release: Senw037/2002. New subsidiarity Watchdog proposed. 06/06/2002. See also www.TheEPC.be 21 Committee of the Regions, Draft Opinion of the Commission for Constitutional Affairs and European Governance, Rapporteur Mr McConnell, First Minister of Scotland, Const 007, cdr 120/002, 2002. 22 The Herald 05/02/02, M. Ritchie, p. 6. 23 Scottish Parliament, European Committee, 26 March 2002, Cols. 1,440–1441.

Notes 169 24 Ibid.: col. 1,444. 25 Sunday Herald 29/09/02, Labour MEPs: Executive is ‘weak’ in Europe, Alan Crawford, p. 8. 26 The Changed/Enhanced Role of Scotland in Europe as a result of devolution, Deputy First Minister, Holyrood Summer School, 21 August 2002. 27 Europe and the Regions, A paper submitted by Peter Hain to the European Convention on behalf of the UK Government and the devolved administrations in Scotland and Wales, undated but circa January 2003, in readiness for the Convention’s plenary debate on the regions on 7 February 2003. 28 On one of those seven occasions, no Scottish minister was present. There were three plenary sessions of the JMC, five on health, two on the knowledge economy and three on poverty during period 1999–2003 (Scottish parliament, 30 July 2003, written answer, by Ms Patricia Ferguson to Richard Lochhead, S2W-01018). 29 These were: 1. To monitor and where necessary influence the UK line on the forthcoming enlargement. 2. To raise Scotland’s profile within the EU in relation to the smaller Member States, other territorial governments and the EU’s institutions. 3. To exchange ideas with other territorial governments on policy. This has become more commonplace across the EU, whereby individual territorial governments have established bilateral agreements to exchange ideas and learn from best practice. (Interview 27/11/00) 30 During the European Committee’s meeting on 26 March 2002, MSPs were provided with a briefing paper on the Scottish Executive’s priorities for external relations as follows: 1. To promote Scottish devolved policy interests in the EU and internationally. 2. To build mutually beneficial links with other regions and countries in the EU and beyond. 3. To promote a positive image of Scotland overseas. (The Scottish Executive, March 2002, The Scottish Executive’s Priorities for External Relations) 31 During Liddell’s period as Secretary of State there was some duplication over whether the Executive or the Scotland Office developed links to the Scottish diaspora. For example the Scotland Office oversaw the Friends of Scotland initiative. But when the Scotland Office was subsumed within the Department for Constitutional Affairs in 2003, it was agreed that in future this would solely fall within the remit of the Executive. 32 At the time it was called simply ‘the European Committee’ but the author has included External Relations so as to avoid confusion. 33 Scottish Parliament, European Committee, Official Report Meeting 21, 12 December 2000. 34 Sunday Herald 05/05/02, A. Crawford, p. 6. 35 The Changed/Enhanced Role of Scotland in Europe as a result of devolution, Deputy First Minister, Holyrood Summer School, 21 August 2002. 36 Scottish Parliament, Written Answer, Tavish Scott to Richard Lochhead, 17 July 2003. 37 The Herald 27/08/02, Scotland twins with Eastern Cape, R. Dinwoodie, p. 4. 38 Sunday Times 25/08/02, First Minister attacks Bush, K. Farquharson, p. 11. 39 ‘Our ambitions for Scotland – to develop socially, culturally and economically in a sustainable way – mean that at a devolved and local level we must look beyond our borders and be internationalist in our outlook’ (The Times 02/09/02, McConnell backs green energy plan for Africa, a Scotland correspondent, p. 7).

170 Notes 40 See, for example: Raunio 1999, Raunio and Hix 2000, Raunio and Wiberg 2000, Raunio 2001, Arter 1995. 41 It would appear that relatively little empirical research has been undertaken on sub-state parliaments and the EU. That may well have changed before this work is published. There have been a few references to this, however. For example, Gerstenlauer claimed that when the Länder secured a greater control over intra-state mechanisms in Germany regarding the EU, ‘compensation for their parliaments was negligible’ (Gerstenlauer 1995: 212). 42 Legacy Paper: A Review of the First Parliamentary Session of the European Committee – advice to successors. Scottish Parliament, European and External Relations Committee, 26 March 2003. 43 Its original remit was: To consider and report on – Proposals for European Communities legislation The implementation of European Communities legislation Any European Communities or European Issue. (Scottish Parliament, Standing Orders 6.8) 44 Under standing orders 6.8.1. the committee’s remit now includes: The development and implementation of the Scottish Administration’s links with countries and territories outside Scotland, the European Communities (and their institutions) and other organisations. Co-ordination of the international activities of the Scottish Administration. (Scottish Parliament, European and External Relations Committee, Legacy Paper, 26 March 2003) 45 For example: N. Randall. and D. Seawright, Merely a Talking Shop? The European Committees of the Scottish Parliament and Welsh Assembly: New Politics’ in a System of Multi-Level Governance?, Draft paper for presentation at the Annual Conference of the Political Studies Association, University of Aberdeen, 5–7 April 2002. 46 In order to learn more about how the committee viewed its influence, five out of its nine members completed a questionnaire. The analysis herein clearly needs to be qualified due to the relatively low numbers of respondents. There is also the issue of political bias. But although the data is of little empirical value, the five who did contribute were sufficiently diverse, in terms of their political affiliation, to ensure that the findings offer some insights into how MSP’s perceived the parliament’s influence and its impacts on its handling of EU affairs at that point in time (Wright 2001). 47 John Reid, when Secretary of State, attracted criticism by refusing to appear before committees of the Scottish parliament in 2000. According to The Herald, after he declined to attend the Finance Committee, he discussed the matter with the Presiding Officer, Sir David Steel. He also wrote to Tom McCabe, the Minister for Parliament, explaining that, ‘There are political interests who might seek to misuse these mechanisms’ and that as far as UK ministers were concerned they need not necessarily appear before a Scottish parliamentary committee but if they did it would be ‘exceptional for them to do so’ (The Herald 06/09/00, Reid accused of snub to Parliament, by R. Dinwoodie, p. 6). He was by no means alone – see chapter four. 48 Sunday Herald 21/01/01, Dewar the Inside Story, by Brian Fitzpatrick, pp. 1–2. 49 In its ‘Legacy Paper’ for its successor it listed its criteria for inquiry topics. These were: To balance its work across its remit regarding draft EU proposals and initiatives, and their implementation in Scotland. To avoid duplication with other committees.

Notes 171 To provide in input where desirable on those occasions when the Executive invited it do so. To make a difference, particularly to the governance of Scotland in relation to European affairs. To examine those EU proposals which stood to affect Scotland at an early stage in the policy process or when the timing was most expedient to do so. To consider those issues which were politically topical at a particular moment in time. (Legacy Paper: A Review of the First Parliamentary Session of the European and External Relations Committee – advice to successors. 26 March 2003) 50 The author was an observer at the time. 51 This would have meant that ‘Scottish Ministers could not agree a final position with their UK colleagues in advance of a relevant Council of the EU or JMC meeting if the European Committee (or another committee) had previously expressed a wish to provide its view and had not yet done so’ (Scottish Parliament, European Committee, 2001, 9th Report, Report on the Governance of the European Union and the Future of Europe: What Role for Scotland?, para. 244). 52 European Committee, 2001, 9th Report, Report on the Governance of the European Union and the Future of Europe: What Role for Scotland?, para. 225. 53 www.scotland.gov.uk/about/FCSD/ExtRel1 54 For example, officials and the convener of the House of Commons European Committee together with colleagues from the devolved institutions. 55 Interviews 08/11/99 and 17/11/99. 56 At Westminster his counter-part is called the ‘Speaker’. 57 Official Report, The Scottish Parliament, Thursday 16 January 2003, cols. 17,022–17,023. 58 Interview 09/06/99. 59 The Agreement Between the Governments of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland, 1998, para. 10, Strand Three, British–Irish Council, p. 14. 60 Interview 09/06/99. 61 Interview 22/11/99. 62 The snub to Bertie Ahern over his cancelled trip to Lanarkshire finally cost Frank Roy his job as a ministerial aide yesterday, after a second wave of sharp diplomatic exchanges with Dublin. The MP for Motherwell and Wishaw’s resignation as parliamentary private secretary was offered with no hint of an apology for any offence he had caused over the Carfin Grotto affair, and was accepted with reluctance by Helen Liddell, the Scottish Secretary . . . Mr Ahern’s office [had] reacted furiously in public. (The Herald 12/02/01, Roy quits after Dublin outrage over leak campaign, R. Dinwoodie and M. Settle, p. 1) 63 For instance see Salmon 2000. 9 Functionalism, subsidiarity and the denizen of the deep 1 Minute addressed to Mr Rowland, Copy to Mr Aglan from Alan Scott dated 5 May 1971. EEC Scottish Office composite picture of developments: ‘Possible or likely danger points’ File AF 089/0021. Agriculture, Implications for Scotland of British Entry into the EEC. 2 Following the 2003 reform of the policy it is likely that a multi-annual approach will be adopted in order to circumvent this problem.

172 Notes 3 Hodges provides a useful explanation as follows: Theorists of regional integration such as Haas have been influenced by the ideas of functionalists, a group of political theorists who were active in the period between the two world wars. These functionalist writers, of whom David Mitrany (1943) is probably the most influential, regarded nationalism as the major threat to world peace, and saw the development of international organizations performing human welfare tasks as a means of eroding popular support for nation states and thus diminishing the risk of war. They perceived that in modern political systems there was a growing range of technical, politically neutral, functions which governments had to perform. Many of these tasks, such as control of air transport, or prevention of disease, could not be carried out effectively at the national level, and required international collaboration if they were to be performed successfully. The functionalist strategy was therefore to encourage governments to entrust the performance of these tasks to non-political technical experts within the framework of an international organization. If the tasks were carried out successfully, then the governments concerned might be encouraged to permit similar collaborative attempts in other fields. (Hodges 1972: 21) 4 A draft of the Resolution stated: The Council furthermore recognises that there are other regions in the Community, inter alia those referred to in the Commission’s proposal to the Council (1) where the local communities are particularly dependent on fishing and the industries allied thereto. The Council therefore agrees that in applying the Common Fisheries Policy, account should also be taken of the vital needs of these fishing communities. (1) The regions referred to are Greenland, the northern parts of the United Kingdom and Ireland. (Draft Council Resolution 1976, Annex V C/76 Add.1 rev 1, See also Bull 10-1976-2227 which refers to Resolution) 5 By the autumn of 1988 there was mounting concern in the aftermath of the EU’s negotiations with Norway that the next year’s TAC for North Sea haddock would be disastrous for the Scottish White Fish Fleet. The SFF had been advised that the TAC would drop to only 48,000 tonnes for the UK in its entirety with a figure for 68,000 tonnes for the Community and Norway combined. The Federation had two meetings with civil servants at the Scottish Office during November. Whilst Lord Sanderson, the Scottish Minister, refused to disregard scientific advice, he did agree to invoke the Hague Preference on the grounds that the minimum TAC for the UK was supposed to be 60,000 tonnes . This was only a partial success, with the UK’s share increasing to 54,380 tonnes, though it did affirm that in practice the principle did indeed apply to the TACs under certain circumstances as it was supposed to do (SFF Report dated 7/12/88, Letter from DAFS to the SFF, dated 23/01/89 to the SFF). 6 For the background to this, see Keating and Waters 1985: 73. 7 In the letter to MPs the Chief Executive of the SFF explained: Since my letter of 16th August, a small delegation from the Federation has had a meeting with the Minister of State at the Scottish Office, Lord Gray of Contin, and nothing very new emerged from the meeting inasmuch as it continues to be the impression of the UK Government that Britain is alone in expressing opposition to the proposed increase in the Norway Pout By-Catch from 10% to 20% during the period from 1st October to 31st May annually and that, in consequence, we are almost certain to be heavily outvoted when the issue comes before the next EEC

Notes 173 fish Council Meeting on 10th September, 1984. Whilst the Government, in the person of Lord Gray, would not finally commit himself in one way or another as to how it might go about opposing or actively seeking to modify the proposed Measure, it seemed clear to those of us who meet the Minister of State that it is highly unlikely that the United Kingdom will seek to invoke the Luxembourg Compromise in order to preserve an intact fisheries policy. (SFF circa September 1984) 8 News from the British Trawling Industry February 1978, p. 7. 9 Interview 18/03/95. 10 This information is derived from interviews with an assistant secretary at SOAFD, SFF documentation and the report of the CFP review group (1996), sections 5.3, 5.4 and 5.17. 11 MAFF 1989, Press Release, A copy of Mr Gummer’s statement to the House of Commons on outcome of Fisheries Council meeting in Brussels on 18–19 December 1989, dated 20/12/89. 12 It is evident from the table that there has been an increase in boats under 40ft and a decrease in those between 40ft and 59ft 9ins. Despite the reduction in the size of the vessels, they still enjoyed a sizeable fishing capacity due to technology creep – for a fuller discussion on this refer to Fishing Monthly, No. 89, August 2002, Political Influences are Bad for the Industry’s Future, p. 2. 13 SFF report on TACs and UK quotas for 1990 by Chief Executive with reference of the Council of Fisheries ministers Brussels 18/19th December 1989. 14 In June 1994 the government announced that the scheme would last until 1996, although there would be no extra money. It also warned that fishermen were ‘on probation’; if the sector failed to reduce the fishing effort the Government would look at alternate measures. According to The Scotsman the figure allocated to Scottish fishermen during 1993 was £2.5 million (The Scotsman 16/06/94, Jack extends fishing-boat curbs for two years with warning to fleet, G. Duncan p. 6). 15 This organisation represented the interests of fishermen south of the border. 16 It had been intended that this would not occur until 2003. 17 The Times 04/06/99, Lib Dem backbenchers read the riot act to Scots minister, J. Allardyce, p. 1. 18 Europ News 01/01/00, Common Fisheries Policy after 2002, p. 6. 19 Interview 12/07/99. 20 The Herald 29/06/00, Warning number 2: adapt or die, fishing industry told, R. Watson, p. 10. 21 European Commission, the Week in Europe, 7/12/00. 22 The Herald 7/11/00, End of line looms for cod, p. 10. 23 The Herald 15//01/01, European cod curbs will fail, G. Smith, p. 8. 24 The Herald 19/01/01, Fishing boat decommissioning not ruled out as EU adopts Scots ideas, R. Watson and F. Horsburgh, p. 6. 25 The Press and Journal 25/01/01, Fishermen seek financial aid to weather the storm, p. 7. 26 The Herald 09/03/01, Minister cast adrift by Presiding Officer, F. Horsburgh, p. 4. 27 The Times 14/12/01, £25m deal will help save fish stocks, p. 16. 28 The Times 22/04/02, Tide turning in Europe’s Common Fisheries Policy, R. Watson, p. 12. 29 The Times 29/05/02, Europe’s fishing reforms will scrap 9,000 boats, R. Watson, p. 14. 30 The Herald 14/06/02, Minister pledges to fight for fair treatment in fishery reform, p. 6. 31 The Times 12/06/02, EU ministers split over fishing reform, R. Watson, p. 17. 32 Sunday Herald 13/10/02, Fishermen draw the line at new cod limit, A. Crawford, p. 6.

174 Notes 33 The Herald 23/10/02, 20,000 Scots jobs in jeopardy as scientists call for cod fishing ban, G. Smith, p. 1. 34 The Times 31/10/02, Scots ministers challenge EU over fishing ban, A. MacLeod, p. 1. 35 The Times 1/11/02, Finnie’s role in EU fish talks muddies waters, A. MacLeod, p. 11. 36 The Times 21/12/02, Trawler fleet has its fish and chips, R. Watson, p. 1. 37 The Herald 23/01/03, Foreign Office blocked EU aid for Scots fishing fleet, M. Ritchie, p. 1. 38 The Herald 21/02/03, SNP and Tories unite to bait the government on bail out, M. Richie, p. 4. 39 The Herald 19/02/03, There is not a pot of gold says fisheries minister, F. Horsburgh, p. 8. 40 The Herald 14/02/03, Fisheries restrictions to continue as Brussels delay long-term strategy, M. Ritchie and N. Smith, p. 12. 41 The Herald 07/05/03, Cautious welcome for EC cod plan, G. Smith, p. 4. 42 Sunday Times 18/05/03, Government to investigate black fish trade, M. Macaskill, p. 4. 43 Interview 12/07/99. 44 Interview 23/08/00. 45 This is a total disgrace and it is a sad indictment of the promises we were given when devolution was introduced to Scotland. We felt that Ross Finnie had listened to us but he was not able to deliver as he was merely carrying Mr Morely’s suitcase and was muzzled in Brussels. A sum of £50 million from the Scottish budget is welcome but the iron fist of Fischler is seen in the package split, and its intended destruction of 55 per cent plus of the vessels now actively engaged in white fishing – possibly 120 out of a fleet of 180. (Fishing Monthly March 2003, No. 96, p. 2) 46 ‘The SNP will campaign for the current CFP to be replaced by a policy that provides the Scottish Parliament with genuine control and strong regional management of Scotland’s fishing grounds’ (SNP, 2003, The Case for a better Scotland, Manifesto 03, p. 17) 47 The author is not acquainted with the views of fishermen from Wales or N. Ireland. 48 Personal note from Bob Allan, CEO of the SFF, to the author September 1997. 49 Interview 12/07/99 50 In essence it is a version of the subsidiarity Principle adopted by the European Community some years ago. The usual expression of subsidiarity is the devolution of powers to the lowest practicable level within individual nation states, or smaller units of government. The zonal approach makes a more sophisticated interpretation of the subsidiarity concept and foresees groups of nations with fishing rights in discrete fishing zones becoming involved in the management of those fisheries. The basic building blocks of the proposed new structure are the ‘Zonal Management Committees’. These committees of experts would be made up of professional fishermen, managers and scientists from each of the participating nations. Initially, the committees would advise the European Fisheries Council but it is expected that they would be empowered to make management decisions for their respective zones after a suitable induction period. (Zonal Management, A New Vision for Europe’s Fisheries, the SFF and NFFO, May 2000) 51 European Commission, 2001, Green Paper, The Future of the Common Fisheries Policy, p. 34.

Notes 175 52 Each RAC will be organised around fishing zones under the jurisdiction of at least two Member States. The national or regional authorities of the countries concerned, along with representatives of the European Commission, may attend their meetings. The RACs will advise the Commission or the Member States concerned and will inform the authorities of problems relating to implementation of the Common Fisheries Policy in their zone. (European Commission, Fishing in Europe, No. 16, April 2003) 53 European Commission, Fishing in Europe, Nos 12–13, July 2002, p. 5. 54 Hamish Morrison, in a speech at a fishing gear conference in Glasgow, Fishing Monthly No. 98, 2003, p. 3. 55 For example, the Commission’s briefing notes on the RACs stated: ‘The aim of RACs is to allow people who do not have a direct input in the CFP at the European level to participate at the regional or local level’ (European Commission, Fishing in Europe, No. 16, 2003). 56 Kofman referred to it as follows: The term was initially applied by Hayward (1969) in a study of the relationship between state and regional pressure groups in Brittany. Functional regionalism was based on ‘functional economic development and administrative necessity’. The implications of this approach have been analysed more fully in Watson (1978) for whom ‘it represents a national or central government way of conceiving and treating the region’. The region is denied any policy making capability as a political institutional entity. The problem thereby posed for governments has been seen as basically a technical economic one and a solution has been sought essentially in the process known as ‘modernisation’ (pp. 457–458). Such a strategy implies similar treatment of all regions so that national space is carved into a series of problem zones. The region is not deemed to have a specific identity or personality, while economic and cultural policies are divorced from each other. Regions are consequently no more than the amalgamation of smaller administrative units or economic planning entities. (Kofman 1981: 174) 57 For more information on this refer to Fishing Monthly, No. 106, January 2004, p. 1. This scenario was also discussed briefly by Dr Denis MacShane, when he appeared before the Scottish Parliament’s European and External Relations Committee on 7 January 2004. 58 Mike Park, chairman of the White Fish Producers’ Association warned: ‘We have no choice, because the alternative is bankruptcy.’ Hamish Morrison also condemned the UK government for its lack of consultation on the matter. He said: ‘There seemed to be surprise on their side [. . .] that we reacted so badly against these measures and surprise that we had never been consulted by our own government’ (The Herald 16/01/04, Fishermen stand by threat to break EC ruling over number of days they can work, G. Smith, p. 12). 59 A Downing Street strategy unit report on the UK fishing industry, due to be published next month, will recommend beefed-up regional management boards be awarded control of individual fishing zones. Under the proposals regional management boards, based on the regional advisory councils established under European Council regulations in December 2002 and currently being ratified by the European Parliament, would be given additional powers to control fishing in particular areas. Scottish fishing, for example, would be governed by a management board for the North Sea. It follows a year-long study commissioned by Tony Blair,

176 Notes into the medium-to-long-term challenges facing the industry. Insiders believe recommendations contained in the report will be so radical and far-reaching they will command considerable support in Brussels. Franz Fischler, Europe’s fisheries commissioner, has already indicated his preference for a more regional approach. (The Herald 07/01/04, No 10 plans to back Scots over control of North Sea Fishing Grounds, D. Summers, G. Smith, R. Dinwoodie, p. 6) 10 The EU and international affairs: drivers for autonomy? 1 Kellas 1998: 178–179. Kellas pointed out that the concept of consocialism owes much to A. Lijphart. For example, refer to A. Lijphart, The Politics of Accommodation: Pluralism and Democracy in the Netherlands, Berkeley: University of California Press, 1968; A. Lijphart, Democracy in Plural Societies: A Comparative Exploration, New Haven: Yale University Press, 1977; A. Lijphart, Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries, Newhaven and London: Yale University Press, 1984. 2 Kellas 1998: 180. 3 Ibid.: 180. 4 Ibid.: 181–182. 5 Ibid.: 221. 6 MacCormick 1999: 142. 7 Ibid.: 191. 8 Keating 2001a: 137. 9 Ibid.: 154. 10 Ibid.: 157. 11 He was careful to stress, however, that he was not arguing that an independent Scotland would not be viable or that it represented a ‘legitimate democratic choice for its people’. He was merely questioning the ‘wisdom of pursuing such a course of action’ (Ibid.: 162). 12 Ibid.: 154. 13 Ibid.: 157. 14 For example Alex Neil, who once stood against John Swinney for the leadership of the SNP was quoted as saying: If the draft is put to a referendum, I’d want to campaign for a ‘no’ vote. There is no nationalist who should stand for that draft constitution. We have not done enough thinking on our position on Europe. We’ve got to recognise there’s a strong vein through Scottish opinion that is much more suspicious of the federalist agenda than was the case 10 years ago when we were campaigning enthusiastically for ‘independence in Europe’. We’ve got to make a clear distinction between sharing sovereignty, where we take it back where we need to, and transferring sovereignty. When you transfer it, European law becomes superior. That is a building block of a federal Europe, and is very, very dangerous indeed. (Sunday Herald 1/06/03, Swinney faces revolt over Europe, D. Fraser, p. 2). 15 The author is unacquainted with the views of the third candidate. 16 Helen Mary Jones observed: At its heart Plaid Cymru has always had a straightforward purpose: to obtain for Wales the freedom to participate as a full partner in the international community, and to build a nation where all our people are enabled to contribute and the vulnerable are protected. Historically we have tied ourselves into knots in the search for the right formula to describe that freedom. We have talked about self-government and full national

Notes 177 status. We have rightly avoided using the term independence with all the outdated insularity that the term implies. There is nothing basically wrong with the term ‘full national status’ and there is nothing certainly wrong with the detailed constitutional policy that sets out how we attain that status. Rhodri Glyn Thomas sailed a slightly different course. He argued: The key to achieving our constitutional aims is to clearly outline why Wales needs extra powers. However, the new constitution of Europe leaves little room for the influence of the small countries and regions of Europe. Instead it places all the powers in the hands of the large Member States. Logistically Wales is and will always be a part of the United Kingdom. But we need a more equal partnership based on free association, which will give us sovereignty without separation. The free association model of self government would provide Wales with a status between devolution and independence allowing for internal self-government and as much external autonomy as the people of Wales want. (Agenda, 2003, Institute of Welsh Affairs, Summer 2003, pp. 37–40) 17 This point relates to the current Labour-Lib.DemExecutive – an SNP Executive could draw on its electoral mandate to demand a new constitutional arrangement for Scotland. 18 Its demands included the following: 1. The need to set out the division of powers between the EU on the one hand and the Member States and Sub-Member State Administrations (SMSAs) on the other. 2. Higher profile and better definition of the principle of subsidiarity and the introduction of a political ex-ante mechanism to ensure that the important principle of subsidiarity is better applied in the EU. Decisions by the Council would be taken quickly before EU legislation is passed and be authoritative. 3. Assessment of the potential financial impact of EU legislation compared to the value of the benefits. 4. Greater involvement for SMSAs in the EU decision-making process. 5. Commission should consult with implementing authorities at the pre-legislative stage, based on a code of practice. 6. Greater use of framework proposals rather than rigid legislation to allow flexible implementation that is sensitive to local and regional circumstances. 7. Review of role and status of the Committee of the Regions 8. Operation of the Commission should be constrained by the strict observance of the following: • • • •

Act within the powers conferred by Treaties. The principle of subsidiarity. The principle of proportionality. Obligation to respect national identity of Member States, which includes identity/cultural diversity of the regions. • Enhance the accountability, effectiveness, proximity and transparency of the European decision-making process. (www.scotland.gov.uk/about/FCSD/ExtRel1/00014768/ page598851166.aspx). 19 Direct in this context means that at the time of writing Scotland is not entitled to its own representation in the Council, as it is not a Member State in its own right and also because foreign affairs is reserved to Westminster. Thus in a formal sense Scottish representation in the Council is indirect as this occurs via the UK government. Effectively, therefore, on the relatively few occasions when Scottish ministers have led

178 Notes the UK delegation in the Council, this has related to low politics and de facto they are UK ministers. See below. 20 This is a moot point – perhaps a more accurate description is the individual is ‘representing’ the UK. Either way, it is something of a constitutional anomaly. If a Scottish minister does represent the UK in the Council, as has happened, that individual is not accountable to the parliament at Westminster, only to Holyrood, thereby engendering a democratic deficit for the rest of the UK. It is for that reason that civil servants advised the author in 1999 that such an arrangement would be something of a rarity. 21 However, that has not deterred Scottish ministers from claiming that they often head UK delegations to the Council. One such example was Peter Peacock the Education Minister, who issued the following press release: Scottish Ministers often lead the discussion for the UK in the EU Council meetings and I am delighted to have the opportunity to speak on behalf of the UK in the EU on some of the most important issues affecting young people. Scotland is an outward looking country, fully aware of its place in the UK, Europe and the wider world. The issues being discussed by European Ministers at this meeting are some of the most challenging facing all European countries. (Scottish Executive, News Release seed 347/2003 25/11/03) It should be noted that this relates essentially to an area of low politics and it would be interesting to learn how many times Scottish ministers have been in the lead in areas like fisheries, for example. 22 European Convention, Conv 724/03, Annex 2, Protocol on the Application of the Principles of subsidiarity and Proportionality, 2003, para. 8, p. 144. 23 The reason for doubt is that for the most part the CoR embodies the collective views of the EU’s regions rather than individual ones. In addition, the very diversity of its membership calls into question its efficacy and there is the attendant risk that it operates on a lowest common denominator basis. It also remains to be seen whether any such application to the ECJ would meet with success and such cases would be restricted to those areas of policy which fall within its right of consultation. 24 The Union shall respect national identities of its Member States, inherent in their fundamental structures, political and constitutional, including for regional and local self government. It shall respect their essential State functions, including for ensuring territorial integrity of the State, and for maintaining law and order and safeguarding internal security. The European Convention, Conv 724/03, Annex 2, Title I, Definitions and Objectives of the Union, Article 1.5, Relations between the Union and the Member States, 2003, p. 56) 25 For example, Article 9 stated: Under the principle of subsidiarity, in areas which do not fall within its exclusive competence the Union shall act only if and insofar as the objectives of the intended action cannot be sufficiently achieved by the Member States, either at central level or regional and local level but can rather, by reason of the scale of effects of the proposed action, be better achieved at Union level. (The European Convention, Draft Treaty Establishing a Constitution for Europe, 2003) 26 The European Convention, Draft Treaty Establishing A Constitution for Europe, Protocol on the Application of the Principles of subsidiarity and Proportionality, 2003, para. 4.

Notes 179 27 Ibid.: para. 6. 28 They also added, however, that: ‘While they may talk less of imminent change, territorial elites still generally envisage further development of devolution settlements’ (Bradbury and Mitchell 2002: 315). 29 Scottish Referendum Survey 1997, cited in Brown et al. 1999: 142.

Bibliography

Aguirre, I. (1999) Making Sense of Paradiplomacy? An Intertextual Inquiry About a Concept in Search of a Defintion, in F. Aldecoa and M. Keating (eds) Paradiplomacy in Action. The Foreign Relations of Subnational Governments, London: Cass. Aitken, C.P. (1981) Scottish Local Authorities and their Involvement in the European Economic Community, a paper based on an M.Sc. Thesis, the University of Strathclyde in 1979. Aldecoa, F. (1999) Towards Plurinational Diplomacy in the Deeper and Wider European Union (1985–2005), in F. Aldecoa and M. Keating (eds) Paradiplomacy in Action. The Foreign Relations of Subnational Governments, London: Cass. Aldecoa, F. and Keating, M. (eds) (1999) Paradiplomacy in Action. The Foreign Relations of Subnational Governments, London: Cass. Archer, C. and Main, J. (1980) Conclusion, in C. Archer and J. Main (eds) Scotland’s Voice in International Affairs, London: Hurst. Archer, C., Jordan, G. and Main J. (1980) Scottish Agriculture: the European Aspect, in C. Archer and J. Main (eds) Scotland’s Voice in International Affairs, London: Hurst. Arter, D. (1995) The Folketing and Denmark’s ‘European Policy’: the Case of an ‘Authorising Assembly’, Journal of Legislative Studies, Special Edition, 1.3: 110–123. Bache, I. (1998) The Politics of European Union Regional Policy, Sheffield: Sheffield Academic Press. Bache, I. and Bristow, G. (2003) Devolution and the Gatekeeping Role of the Core Executive: the Struggle for European Funds, The British Journal of Politics and International Relations, 5: 405–427. Bachtler, J. (1997) New Dimensions of Regional Policy in Western Europe, in M. Keating and J. Loughlin (eds) The Political Economy of Regionalism, London: Cass. Bachtler, J. and Taylor, S. (1996) Regional Development Strategies in Objective 2 Regions: A Comparative Assessment, Regional Studies, 30: 405–427. Balthazar, L. (1999) The Quebec Experience: Success or Failure?, in F. Aldecoa. and M. Keating (eds) Paradiplomacy in Action. The Foreign Relations of Subnational Governments, London: Cass. Bentham, J. (1843) From the works of Jeremy Bentham, reprinted in J.R. Champlin (ed.) (1971) Power, New York: Atherton Press. Borrás-Alomar, S., Chrisiansen, T. and Rodríguéz, A. (1994) Towards a ‘Europe of the Regions’? Visions and Reality from a Critical Perspective, in Regional Politics and Policy, 4: 1–27. Börzel, T.A. (2002) States and Regions in the European Union. Institutional Adaptation in Germany and Spain, Cambridge: Cambridge University Press.

Bibliography 181 Bourne, A. K. (2000) The EU’s 16th Member State in Taxation Matters? The Basque Taxation Regime, the Challenge and the Defence, UACES Research Workshop, Regionalism and the EU: Comparative and Interdisciplinary Challenges, Queens University of Belfast, 21–22 June 2000. Bourne, A.K. (2002) European Integration and the Politics of Accommodation in NationallyDiverse societies: The European Union, Practices of ‘Shared Sovereignty’ and the Prospects for Consensual Politics in the Basque Country, ECPR Workshop, Turin, March 22–27 2002. Bourne, A.K. (2003) The Impact of European Integration on Regional Power, Journal of Common Market Studies, 41: 597–620. Bradbury, J. and Mitchell, J. (2002) Devolution and Territorial Politics. Stability and Uncertainty, Parliamentary Affairs, 55: 299–316. Bradley, A.W. (1975) Devolution of Government in Britain – Some Scottish Aspects, in H. Calvert (ed.) Devolution, London: Professional Books Ltd. Brown, A., Paterson, L. and McCrone, D. (1996) Politics and Society in Scotland, Basingstoke: Macmillan. Brown, A., McCrone, D., Paterson, L. and Surridge P. (1999) The Scottish Electorate. The 1997 General Election and Beyond, Basingstoke: Macmillan. Bulmer, S., Jeffery, C. and Paterson, W.E. (2000) Germany’s European Diplomacy. Shaping the Regional Milieu, Manchester: Manchester University Press. Bulmer, S., Burch, M., Carter, C., Hogwood, P. and Scott, A. (2002) British Devolution and European Policy-Making. Transforming Britain into Multi-Level Governance, Basingstoke: Palgrave. Bulpitt, J. (1983) Territory and Power in the United Kingdom. An Interpretation, Manchester: Manchester University Press. Burgess, M. (2003) Living with Difference: Multinational Federation in Comparative Perspective, a paper presented at the Madison Trust Federal Studies Conference, at Robinson College Cambridge, 4th to 6th July 2003. Burgess, M. and Gress, F. (1991) German Unity and the European Union: Federalism Restructured and Revitalised, Regional Politics and Policy, 1: 242–259. Burrows, N. (2000) Devolution, London: Sweet and Maxwell. Calvert, H. (1975) Devolution in Perspective, in H. Calvert (ed.) Devolution, London: Professional Books Ltd. Central Regional Council (1993) Central Regional Council European Strategy, June 1993, Stirling. CFP Review Group Report (1996) Conclusions and Recommendations, Volume I, London. CFP Review Group Report (1996) Conclusions and Recommendations, Volume 11, London. Convention of Scottish Local Authorities (1996) Guide to Developing the European Function, Draft 16, COSLA, Edinburgh. Convention of Scottish Local Authorities (1996) Guide to Developing the European Function, Draft 17, COSLA, Edinburgh. Convention of Scottish Local Authorities (1996) European and International Affairs Strategic Plan, COSLA, Edinburgh. Council Regulation (1980) (EEC) 3325/80 of 16 December 1980 amending Regulation (EEC) No 724/75 Establishing a European Regional Development Fund, Brussels. Council Regulation (1984) (EEC) 1787/84 on 19 June 1984 on the European Regional Development Funds, Brussels. Council Regulation (EEC) No 2502/88 of June 1988, on the tasks of the Structural Funds

182 Bibliography and their effectiveness and on coordination of their activities between themselves and with the operation of the European Investment Bank and the other existing financial instruments. Council Regulation (EEC) No 4253/88 of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and other existing financial instruments. Council Regulation (EEC) No 2081/93 of 20 July 1993, amending Regulation no 2052/88 on the tasks of the Structural Funds and their effectiveness and on coordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments. Council Regulation (EEC) 2082/93 of 20 July 1993, amending Regulation (EEC) No 4253/88 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments. CPMR (Conference of the Peripheral and Maritime Regions) (1992) Information Bulletin No 27, May 1992, CPMR. CPMR (Conference of the Peripheral and Maritime Regions) (1993) The European Community of the Sea, CPMR. Dinan, D. (1994) Ever Closer Union?, Basingstoke: Macmillan. Draft Council Resolution on certain aspects of the creation of a 200 mile fishing zone in the Community with effect from 1 January 1977, October 1976, The Hague. Dunion, K. (1995) Living in the Real World. The International Role for Scotland’s Parliament, Edinburgh: Scottish Education and Action for Development. Edwards, O.D. (ed.) (1989) A Claim of Right for Scotland, Edinburgh: Polygon. EEC (1957) Treaty Establishing the European Economic Community, Luxembourg: European Commission. EEC (1970) Regulation (EEC) 2141/70 of the Council of 20 October 1970 laying down a common structural policy for the fishing industry, Luxembourg: European Commission. EEC (1983) Council Regulation (EEC) No 170/83 of 25 January 1983 Establishing a Community system for the conservation and management of fishery resources, Luxembourg: European Commission. EEC (1985) The European Community’s Fishery Policy, Luxembourg: European Commission. EEC (1992) Council Regulation (EEC) No 3760/92 of 20 December 1992 Establishing a Community system for fisheries and aquaculture, Luxembourg: European Commission. European Commission (1978) European Communities Commission, Background Report, 28 April 1978, Fish Can’t Read. The Need for a Community Fisheries Conservation Policy, Brussels: European Commission. European Commission (1989) Guide to the Reform of the Community’s Structural Funds, Luxembourg: European Commission. European Commission (1991) The Regions of the 1990’s, Fourth Periodic Report on the Social and Economic Situation and Development of the Regions of the Community, Luxembourg: European Commission. European Commission (1993) Community Structural Funds 1994–99, Luxembourg: European Commission. European Commission (1994a), Assistance from the Structural Funds for the Development of Rural Areas, Objective 5b areas 1994–99, Brussels: European Commission DGXVI.

Bibliography 183 European Commission (1994b) Guide to the Community Initiatives 1994–99, First Edition, Luxembourg: European Commission. European Commission (1994c) Regional Development Programmes, United Kingdom 1993, Luxembourg: European Commission. European Commission (1994d) Fourth Annual Report of the Implementation of the Reform of the Structural Funds 1992, Luxembourg: European Commission. European Commission (1994e) Single Programming Document, The Highlands and Islands Objective 1 1994–1999, Brussels: European Commission, Directorate General for Regional Policies. European Commission (1994f) The Commission Approves the Objective 1 Programme document for Highlands and Islands (UK) 1994–1999, Press Release, Brussels: European Commission, Spokesman Service. European Commission, 94/C/ 180/13, Notice to Member States laying down guidelines for operational programmes which member states are invited to establish in the framework of a Community initiative concerning border development, cross-border cooperation and selected energy networks. European Commission (c1995) The European Social Fund, Employment and Human Resources Development across the European Union 1994–99, Luxembourg: European Commission. European Commission (1995) European Integration, Luxembourg: European Commission. European Commission (2003) The New Common Fisheries Policy, Luxembourg: European Commission. European Convention, (2003) Conv 724/03 and 725/03, Draft Constitution, Vol. II, Annex 2. European Council (1992) Doc/92/08/, European Council in Edinburgh, 11 and 12 December 1992, Conclusions of the Presidency. Fry, M. and Cooney, J. (1979) Scotland in the New Europe, Dublin: Dublin University Press. Gerstenlauer, H. (1985) German Länder in the European Community, in M. Keating and B. Jones (eds) Regions in the European Community, Oxford: Clarendon Press. Gerstenlauer, H. (1995) German Länder and the European Community, in B. Jones and M. Keating (eds) The European Union and the Regions, Oxford: Clarendon Press. Goin, F. (1991) Devolution. Two Centuries of Contradictions. Ten Years of Application. The Future of France. A dissertation submitted in partial fulfilment of the requirements of the M.B.A., the . Heggie, G. (2003) The Story So Far: The Role of the Scottish Parliament’s European Committee in the UK–EU Policy Cycle, Scottish Affairs, 44: 114–131. Henig, S. (ed.) (2002) Modernising Britain. Central, Devolved, Federal?, London: The Federal Trust. HMSO (1968) The Civil Service Vol 5(2) Proposals and Opinions, Parts 3 and 4. Organisations and Individuals. Evidence submitted to the Committee under the Chairmanship of Lord Fulton 1966–1968, London: HMSO. HMSO (1969a) Minutes of Evidence. II. Scotland 29th–30th September 1969, Commission on the Constitution, London: HMSO. HMSO (1969b) Written Evidence. 2. The Scottish Office. Lord Advocate’s Department and the Crown Office, Commission on the Constitution, London: HMSO. HMSO (1973a) Cm 5460, Royal Commission on the Constitution 1969–73 Volume 1 Report, London: HMSO. HMSO (1973b) Cm 5460-I, Royal Commission on the Constitution 1969–1973, Volume II,

184 Bibliography Memorandum of Dissent, by Lord Crowther-Hunt and Professor A.T. Peacock, London: HMSO. HMSO (1975) Cm. 6348, Our Changing Democracy. Devolution to Scotland and Wales, London: HMSO. HMSO (1993) Cm 2225, Scotland in the Union: A Partnership for Good, London: HMSO. HMSO (1997) Cm 3658, Scotland’s Parliament, The Scottish Office, Edinburgh: HMSO. Hodges, M. (1972) Introduction, in M. Hodges (ed.) European Integration: Theoretical Perspectives, Harmondsworth: Penguin. Holden, M. (c1991) The Future of the Common Fisheries Policy, Godalming: World Wildlife Fund. Holden, M. (1994) The Common Fisheries Policy, Fishing News Books, Oxford: Blackwell. Hooghe, L. (1995a) Subnational Mobilisation in the European Union, in West European Politics, 18: 175–198. Hooghe, L. (1995b) Belgian Federalism and the European Community, in B. Jones and M. Keating (eds) The European Union and the Regions, Oxford: Clarendon Press. Hooghe, L. (1996) Introduction: Reconciling EU-wide Policy and National Diversity, in L. Hooghe (ed.) Cohesion Policy and European Integration. Building Multi-level Governance, Oxford: Oxford University Press. Hopkins, W.J. (2002) Devolution in Context. Regional, Federal and Devolved Government in the Member States of the European Union, London: Cavendish. Hosking, D.M. and Morely, I.E. (1991) A Social Psychology of Organising. People, Processes and Contexts, Hemel Hempstead: Harvester Wheatsheaf. House of Lords (1995) Evidence taken before the sub-committee on the 1996 InterGovernmental Conference, London. House of Lords (2003) HL Paper 28, Select Committee on the Constitution, Devolution: Inter-institutional Relations in the United Kingdom, London. Jeffery, C. (ed.) (1997a) The Regional Dimension of the European Union. Towards a Third Level in Europe?, London: Cass. Jeffery, C. (1997b) Farewell the Third Level? The German Länder and the European Policy Process, in C. Jeffery (ed.) The Regional Dimension of the European Union. Towards a Third Level in Europe?, London: Cass. Jeffery, C. (1997c) Conclusions: Sub-National Authorities and ‘European Domestic Policy’, in C. Jeffery (ed.) The Regional Dimension of the European Union. Towards a Third Level in Europe?, London: Cass. Jeffery, C. (1997d) Regional Information Offices in Brussels and Multi-Level Governance in the EU: a UK–German Comparison, in C. Jeffery (ed.) The Regional Dimension of the European Union. Towards a Third Level in Europe?, London: Cass. Jeffery, C. (1998) Multi-layer Democracy in Germany: Insights for Scottish Devolution, London: The Constitution Unit. John, P. (1994) UK Sub-national Offices in Brussels: Diversification or Regionalization?, Regional Studies, 28: 739–746. John, P. (1997) Europeanization in a Centralizing State: Multi-Level Governance in the UK, in C. Jeffery C. (ed.) The Regional Dimension of the European Union. Towards a Third Level in Europe?, London: Cass. Jones B. (1985) Conclusion, in M. Keating and B. Jones, Regions in the European Community, Oxford: Clarendon Press. Jones, B. and Keating, M. (eds) (1995) The European Union and the Regions, Oxford: Clarendon Press.

Bibliography 185 Keating, M. (1995) Europeanism and Regionalism, in B. Jones and M. Keating (eds) The European Union and the Regions, Oxford: Clarendon Press. Keating, M. (1997) The Political Economy of Regionalism, in M. Keating and J. Loughlin (eds) The Political Economy of Regionalism, London: Cass. Keating, M. (1998) The New Regionalism in Western Europe. Territorial Restructuring and Political Change, Cheltenham: Edward Elgar. Keating, M. (1999) Regions and International Affairs: Motives, Opportunities and Strategies, in F. Aldecoa and M. Keating (eds) Paradiplomacy in Action. The Foreign Relations of Subnational Governments, London: Cass. Keating, M. (2001a) Plurinational Democracy. Stateless Nations in a Post-Sovereignty Era, Oxford: Oxford University Press. Keating, M. (2001b) Nations against the State. The New Politics of Nationalism in Quebec, Catalonia and Scotland, Basingstoke: Palgrave. Keating, M. and Jones, B. (eds) (1985) Regions in the European Community, Oxford: Clarendon Press. Keating, M. and Waters, N. (1985) Scotland in the European Community, in M. Keating and B. Jones (eds) Regions in the European Community, Oxford: Clarendon Press. Kellas, J.G. (1977) The Effect of Membership of the European Community on Representative Institutions in Scotland, in Appendix 1, in the Hansard Society for Parliamentary Government, The British People: Their Voice in Europe, Farnborough: Saxon House. Kellas, J.G. (1989) The Scottish Political System, 4th edn, Cambridge: Cambridge University Press. Kellas, J.G. (1995) Review: The Autonomy of Modern Scotland, Scottish Affairs, 10: 106–108. Kellas, J.G. (1998) The Politics of Nationalism and Ethnicity, Basingstoke: Macmillan. Kellas, J.G. (2000) Some Constitutional Aspects of Devolution, in A. Wright (ed.) Scotland: the Challenge of Devolution, Aldershot: Ashgate. Kerremans, B. (2000) Determining a European Policy in a Multi-Level Setting: The Case of Specialized Co-ordination in Belgium, Regional and Federal Studies, 10: 36–61. Kerremans, B. and Beyers, J. (1997) Belgian Sub-National Entities in the European Union: Second or Third Level Players?, in C. Jeffery (ed.) The Regional Dimension of the European Union. Towards a Third Level in Europe?, London: Cass. Kofman, E. (1981) Functional Regionalism and Alternative Regional Development Programmes in Corsica, Regional Studies, 15: 173–181. Labour (1994) Action for Scotland in Europe, Glasgow: Scottish Labour Party. Le Gales, P. (1998) Conclusion: Government and Governance of Regions: Structural Weaknesses and New Mobilisations, in P. Le Gales and C. Lesquesne (eds) Regions in Europe, London: Routledge. Liberal Democrats (1992) Changing Britain for Good. The Liberal Democrat Manifesto 1992, Candidate’s Edition. Lindsay, I. (1991) The SNP and the Lure of Europe, in T. Gallagher (ed.) Nationalism in the Nineties, Edinburgh: Polygon. Loughlin, J. (1997) Representing Regions in Europe: the Committee of the Regions, in C. Jeffery (ed.) The Regional Dimension of the European Union. Towards a Third Level in Europe?, London: Cass. Loughlin, J. (2001) Conclusions, in J. Loughlin (ed.) Subnational Democracy in the European Union. Challenges and Opportunites, Oxford: Oxford University Press.

186 Bibliography Lynch, P. (1996) Minority Nationalism and European Integration, Cardiff: University of Wales Press. Lynch, P. (2001) Scottish Government and Politics, Edinburgh: Edinburgh University Press. Lynch, P. (2002) SNP. The History of the Scottish National Party, Cardiff: Welsh Academic Press. MacCormick, N. (1999) Questioning Sovereignty, Oxford: Oxford University Press. McCrone, G. (1969) Regional Policy in Britain, London: George Allen and Unwin. March, J.G. (1955) An Introduction to the Theory and Measurement of Influence, reprinted in R. Bell, D.V. Edwards and R.H. Wagner (1969), Political Power, New York: Free Press. Marks, G. (1993) Structural Policy and Multilevel Governance in the EC, in A.W. Cafruny and G.G. Rosenthal (eds) The State of the European Community. Vol 2 The Maastricht Debates and Beyond, Boulder: Lynne Rienner. Marks, G., Scharpf F., Schmitter, P. and Streeck, W. (1996) Governance in the European Union, London: Sage. Martin, D. (1989) The Democratic Deficit, in D.O. Edwards (ed.) A Claim of Right for Scotland, Edinburgh: Polygon. Martin, D. (1993) Beyond 1992 – A Deeper and Wider Europe, in G. Prince (ed.) A Window on Europe. The Lothian Lectures 1992, Edinburgh: Polygon. Martin, S. and Pearce, G. (1993) European Regional Development Strategies: Strengthening Meso-government in the UK?, Regional Studies, 27: 681 to 685. Mazey, S. and Mitchell, J., (1993), Europe of the Regions: Territorial Interests and European Integration. The Scottish Experience, in S. Mazey and J. Richardson (eds) Lobbying in The European Community, Oxford: Oxford University Press. Midwinter, A., Keating, M. and Mitchell, J. (1991) Politics and Public Policy in Scotland, Basingstoke: Macmillan. Milward, A. (1992) The European Rescue of the Nation-State, London: Routledge. Mitchell, J. (1990) Conservatives and the Union, Edinburgh: Edinburgh University Press. Mitchell, J. (1996) Strategies for Self-Government, Edinburgh: Polygon. Mitchell, J. (1997) Scotland, the Union State and the International Environment, in M. Keating and J. Loughlin (eds) The Political Economy of Regionalism, London: Cass. Mitchell, J. (2001) Scotland: Maturing Devolution, in A. Trench (ed.) The State of the Nations 2001, Thorverton: Imprint Academic. Mitchell, J. (2003) Governing Scotland, Basingstoke: Palgrave. Morata, F. (1995) Spanish Regions in the European Community, in B. Jones and M. Keating (eds) The European Union and the Regions, Oxford: Clarendon Press. Murray, G. (2000) New Relations Between Scotland and Ireland, in A. Wright (ed.) Scotland: the Challenge of Devolution, Aldershot: Ashgate. National Federation of Fishermen’s Organisations (1996) Coastal State Management: An Alternative to the Common Fisheries Policy, A policy statement issued December 1996, Grimsby. Nicoll, W. and Salmon, T.C. (1990) Understanding the European Communities, Hemel Hempstead: Philip Allan. Nugent, N. (1994) The Government and Politics of the European Union, Basingstoke: Macmillan. Olson, J. P. (2002) Four Faces of Europeanization, An Arena Seminar, the University of Oslo.

Bibliography 187 Parsons, T. (1969) On the Concept of Political Power, reprinted from proceedings of the American Philosophical Society (June 1963), in R. Bell, D.V. Edwards and R.H. Wagner (eds) (1969) Political Power, New York: Free Press. Paterson, L. (1994) The Autonomy of Modern Scotland, Edinburgh: Edinburgh University Press. Pierre, J. (2001) Introduction: Understanding Governance, in J. Pierre (ed.) Debating Governance. Authority, Steering and Democracy, Oxford: Oxford University Press. Pierre, J. and Peters, B.G. (2000) Governance, Politics and the State, Basingstoke: Macmillan. Pilkington, C. (1995) Britain in the European Union Today, Manchester: Manchester University Press. Ranken, M.B.F. (1984) Greenwich Forum 1X, Edinburgh: Scottish Academic Press. Raunio, T. (1999) Always One Step Behind? National Legislatures and the European Union, Government and Opposition, 34: 180–202. Raunio, T. (2001) The Parliament of Finland: A Model Case for Effective Scrutiny?, in A. Maurer and W. Wessels (eds) National Parliaments on their Ways to Europe: Losers or Latecomers. Baden-Baden: Nomos. Raunio, T. and Hix, S. (2000) Backbenchers Learn to Fight Back: European Integration and Parliamentary Government, West European Politics, 23: 142–168. Raunio, T. and Wiberg, S. (2000) Parliaments’ Adaptation to the European Union, in P. Esaiasson and H. Knut (eds) Beyond Westminster and Congress: The Nordic Experience. Columbus: Ohio State University Press. Rhodes, R.A.W. (1974) Regional Policy and a ‘Europe of Regions’: a Critical Assessment, Regional Studies, 8: 105–114. Rhodes R.A.W. (1997) Understanding Governance, Policy Networks, Governance, Reflexivity and Accountability, Open University Press, Buckingham. Salmon, T. (2000) An Oxymoron: the Scottish Parliament and Foreign Relations?, in A. Wright, Scotland: the Challenge of Devolution, Aldershot: Ashgate. Scott, A., Peterson, J. and Millar, D. (1994) Subsidiarity: A ‘Europe of the Regions’ v the British Constitution, Journal of Common Market Studies, 32: 47–67. Scott, P.H. (1992) Scotland in Europe. Dialogue with a Sceptical Friend, Edinburgh: Cannongate. Scottish Constitutional Convention (1989) Towards Scotland’s Parliament. A Report to the Scottish People by the Scottish Constitutional Convention, 30 March 1989. Scottish Fishermen’s Federation and the National Federation of Fishermen’s Organisations (2000), Zonal Management, A New Vision for Europe’s Fisheries, the SFF and NFFO, Aberdeen Scottish National Party (1994) A Manifesto for the European Elections, Edinburgh. Scottish Office (1991a) The Scottish Office and the European Community: A Review, European Funds Division and the Central Research Unit, Edinburgh. Scottish Office (1991b) The Scottish Office and the European Community: Implementation Plan for the Review Recommendations, European Co-ordination Division, September 1991, Edinburgh.. Scottish Office (1991c) Speech by the Secretary of State on Scotland and Europe to the Scottish Young Conservatives Business Group, 25 February 1991, Edinburgh. Scottish Office (1991d) Management Notice 13/1991: The Scottish Office and the European Community, Sir Russel Hillhouse Permanent Under-Secretary of State, 10 September 1991, Edinburgh.. Scottish Office (1992) Speech by the Secretary of State on Scotland’s place in Europe,

188 Bibliography addressing a joint meeting of the University of St Andrew’s Conservative Association and the University of St Andrew’s European Society, 23 November 1992, Edinburgh. Scottish Office (c1993a) Western Scotland Objective 2 Regional Plan 1994–96, Edinburgh. Scottish Office (c1993b) Eastern Scotland Objective 2 Regional Plan 1994–96, Edinburgh. Scottish Office (c1993c) Borders Objective 5b Regional Plan 1994–99, Edinburgh. Scottish Office (1994) Letter from European Central Support Unit detailing allocations for Scotland 1989–93, Edinburgh. Scottish Parliament, European Committee, 6th Report, 2000, Report of Inquiry into European Structural Funds and their implementation in Scotland, SP Paper 210, Session 1 (2000), Edinburgh. Shackleton, M.J. (1986) The Politics of Fishing in Britain and France, Aldershot: Gower. Sillars, J. (1986) The Case for Optimism, Edinburgh: Polygon. Sillars, J. (1989) Independence in Europe, SNP, Edinburgh, reprinted in L. Paterson (ed.) (1998) A Diverse Assembly, Edinburgh: Edinburgh University Press. Sloat, A. (2002) Scotland in Europe. A Study in Multilevel Governance, Bern: Lang. Smith, B.C. (1985) Decentralization. The Territorial Dimension of the State, London: Allen and Unwin. Smith, J. (2001) Attitudes and Approaches to Europeanisation, Public Policy and Administration, 16: 63–76. Smith, J. (2002) Structural Europeanisation of Government Bureaucracy – Lessons from the Scottish Experience, Paper delivered at the PSA Annual Conference April 2002, University of Aberdeen. Smith, J. (2003) An Incremental Odyssey: The Structural Europeanisation of Government Bureaucracy, Scottish Affairs, 44: 132–156. Strange, S. (1996) The Retreat of the State. The Diffusion of Power in the World Economy, Cambridge: Cambridge University Press. Taylor, B. (1999) The Scottish Parliament, Edinburgh: Polygon. Taylor B. (2002) Scotland’s Parliament. Triumph and Disaster, Edinburgh: Edinburgh University Press. Thatcher, M. (19930 The Downing Street Years, London: Harper Collins. Thomson, J. (1994) The Foreign Dimension: Choices for Scots, in P.S. Hodge (ed.) Scotland and the Union, Hume Papers on Public Policy, Volume 2, No. 2, Edinburgh: Edinburgh University Press. Trench, A. (2003) Intergovernmental Relations, in R. Hazell (ed.) The State of the Nations 2003, Exeter: Imprint Academic. Turok, I., Bachtler, J., Rains, P., Clement, K. and Hayton, K. (1994) ERDF Business Development Evaluation, Final Report to the Scottish Office, University of Strathclyde, Glasgow. Warleigh, A. (1999) The Committee of the Regions: Institutionalising Multi-level Governance?, London: Kogan Page. Watson, M. (2001) Year Zero. An Inside View of the Scottish Parliament, Edinburgh: Polygon. Weber, M. (1919), Weber 1: Politics as a Vocation, reprinted in D. Held, J. Anderson, B. Gieben, S. Hall, L. Harris, P. Lewis, N. Parker and B. Turok (eds) (1985) States and Societies, Oxford: Blackwell in association with the Open University Press. Weyand, S. (1997) Inter-Regional Associations and the European Integration Process, in C. Jeffery (ed.) The Regional Dimension of the European Union. Towards a Third Level in Europe?, London: Cass. Winetrobe, B. (1999) Scottish Parliament, SPICe, Research Paper 99/12.

Bibliography 189 Wright, A. (1996) Scottish Fishermen and the EU: A Choice Between Two Unions?, Scottish Affairs, 14: 27–41. Wright, A. (2000a) Scotland and the EU: All Bark and no Bite?, in A. Wright (ed.) Scotland: the Challenge of Devolution, Aldershot: Ashgate. Wright, A., (2000b) ‘The Europeanisation of Scotland’. A Driver for Autonomy, in M. Graves and G. Girrard (eds) Europe United, the United Kingdom Disunited?, Brest: University of Brest. Wright, A. (2000c) 2002 Review of CFP, Scottish Affairs. No. 32: 59–78. Wright, A. (2001) The European Committee of the Scottish Parliament. Representation, Advocacy, Legitimation and Agenda Setting, Second conference for the network of Scottish and Nordic political scientists, ‘The Nordic model at the cross roads? Governance, Representation and Accountability’, Gothenburg. Wright, A. (2002) A Federalized Scotland – Alternatives to Independence: Scotland in Europe, in S. Henig (ed.) Modernising Britain. Central, Devolved, Federal?, London: The Federal Trust. Wright, A. (2003) The Internationalisation of Scottish Politics. Who Governs Scotland?, in J. Magone (ed.) Regional Institutions and Governance in the European Union, Westport: Praeger. Wright, A. (c2004) – forthcoming Devolution, Westminster and the EU, in P. Giddens and G. Drewry (eds) Britain in the European Union: Law, Policy and Parliament, Basingstoke: Palgrave,

Index

Afghanistan 111 Ahern, Bertie 113 Amsterdam, Treaty of 30, 87 AER (Association of European Regions) 29,60 ACs (Autonomous Communities) 9, 84, 90–2 Basques: 11, 90–2, 94, 96 Belgium: autonomy of SNEs 9, 84; Bavarian crusade of the strong 29; contrast with Spain 92; federal constitutions and TEU 30; Flanders Group 93; multi-level governance 36; P.11 Committee 88–9; Scottish Executive working closely with 105; SNEs and international affairs 88–90; SNE treaties with third countries 96; unusual example of aggregation of territorial interests 90;,; Belgian SNE’s 9,. 96–7, 104, 136; Blair, Tony 69; CFP reform 130 Boyack, Sarah 108 British Irish Council 112–3 Brown, Gordon 49 BSE crisis 62–64; see also NFUS Bush, President: McLeish’s visit 1, 101 Cabinet, the UK, 18, 23; BSE Crisis 63, 67; cabinet office 16, 39, 77; committee on European affairs 78; European Central Bank 61 Campbell, Gordon 37 Canada 95–6; see also Quebec CAP (Common Agricultural Policy) 27, 37, 56, 104 Catalonia 11, 90, 105 Central Regional Council 56–7 Clarke, Kenneth 21 CLRAE (Conference of Presidents

of Regions with Legislative Powers) 100 CoR (Committee of the Regions) 23, 29,30,51,93, 102–3, 134, 139 CFP (Common Fisheries Policy): withdrawal from 129–30; see also quotas, precautionary principle, regionalisation of the CFP and zonalisation concordats 70–7; legal significance of 73–6, 135; see also memorandum of understanding and the joint ministerial committee confederalism and the SNP 21 Confederation of British Industry Scotland 12, 64 Conference of the Peripheral and Maritime Regions 28–30, 60 Conference of Regions with Legislative Powers 93–64; see also Flanders Group and RegLeg consocialism 132–3 Conservative Party 19, 21, 23 Consultative Council of Regional and Local Authorities 29 Consultative Steering Group 67–8, 106 convention on the future of the EU 94, 127, 136, 139–40 COSLA (Convention of Scottish Local Authorities) 59–60 COSAC 110 Council of Europe 25, 100 Council of the European Union: Belgian SNE representation on 88–9; BSE 63–4; Bundesrat representation on 85–6; defending regional interests in 3; European and external relations committee opinions 107; Europeanisation of domestic policy 34; fisheries council 117; imposed on

Index 191 Scotland 66; JMC 71; Länder access to 93; McConnell, Jack 102; regional access to 28, 30–1;replaced by senate 20; Scottish constitutional convention 68; Scottish representation on 135; SNP, call for a seat on 11; Spanish AC’s representation on 91–2; UK gate- keeping 138; UK influence over 18; veto 45; 1997 white paper 69; working groups 51–2, 56; see also regional affairs council and QMV

European Council: February 1988 41 European Court of Auditors 47 ECJ (European Court of Justice) 87, 93, 92, 102, 122, 139; direct access to 109 EP (European Parliament) 22–3, 26, 54, 134; MEPs: 51, 103–4; CFP aid 126 Europeanisation 34–5 EDP (Europeanisation of Domestic Policy) 34–5, 84–5, 135–6, 138 Euro-sceptics 20, 63 Ewing, Winnie 19, 108

De Gaulle, Charles 12–15 decommissioning, of fishing vessels 61, 120–7, 140 Delors, Jacques 26 Denmark 119 Department for Constitutional Affairs 67 Department of Education 55 Department of the Environment 18 DEFRA (Department of the Environment, Food and Rural Affairs 126 DTI (Department of Trade and Industry) 18, 42–3, 58 Dewar, Donald 68, 98–100, 106, 109, 113 dual polity 1–2; restoration of 82–3, 139 Dumfries and Galloway Regional Council 28, 57

federalism 133; co-operative federalism 86; dual federalism 88; federal loyalty 87, 97; see also confederalism Fife Regional Council 44 Finland 123 Fischler, Franz 124, 126 Fitzpatrick, Brian 109 Flanders Declaration, 93, 102 Flanders Group 93 Foreign and Commonwealth Office 76, 82, 115, 126 Forsyth, Michael 63 Fountainbleu, 1984 20, 120 France 61, 95–6 functionalists 118 functional integration: and the CFP 118 functional fegionalism 129, 137–8

EMU (Economic and Monetary Union) 39 Economic and Social Committee 23, 54 England 14, 32; representation in the EU 6 EU institutions and procedures 26–7 Euro-umbrella groups 22 European Central Bank 61 European Coal and Steel Community 25 European Commission: Basques 96; CFP 123; concordat 73; consultation exercise on the CPMR and 28; convention on the future of the EU 139–140; direction relations with territorial administrations 33; EU funds 38–41, 43–4; EU procedures 26; falling fish stocks 120; fishing cut-backs 122, 124–5; interests and 22; lobbying 51, 53–8; multi-level governance 32; overrules on EU aid 45; pre-legislative consultation 136, 140; regions and the 5; Scottish Executive 102–4; short time for consultation 107–8; subsidiarity 30; technocrats 118; third level demands 92; third level relations 92, 134 European Convention on the future of Europe 102–4, 134, 136, 139–40

Germany: ECB 61; multi-level governance 36;, basic law 87, 93; Bavaria 93; CFP effort cut 125; Scottish Executive working closely with, 105; see also Länder Globalisation 7, 84, 94, 99, 100, 105, 131 Grampian Regional Council 44 Governance 32–4 Governance, Commission’s White Paper on 102 Gummer, John 121 Haddow, Sir Douglas 15, 17 Hague preference 119 Hain, Peter 104, 108 Heath, Edward 19 Holyrood Magazine 101 Hurd, Douglas 21 Iceland 118 Independence 7, 134; fisheries 127; see also SNP independence in Europe IGC (Inter-Governmental Conferences) 86, 87, 93, 104

192 Index Intergovernmentalism 135 Internationalisation of territorial politics 94, 138–9 Inter-regional associations 28 Iraq 111 Ireland, 29, 112–3 Italy 29 Joint Ministerial Committee 70–6, 79, 132, 135; Joint Ministerial Committee Europe 104, 110 Justice and Home Affairs 87 Keating, Michael: on post-sovereignty 133–4 Kellas, James: met nation’s demands half way 141; nationalist demands 131; on consocialism 132 Kerr-Millan Agreement 1991 Kinnock, Neil 29

Ministry of Health 12–13 Morley, Elliot 125–6 MAGP (Multi-annual Guidance Programme) 122, 125 multi-level governance 31–4, 135, 138 NFUS (National Farmers Union Scotland): the BSE crisis 62–4 NFFO (National Federation of Fishermen’s Organisations) 122, 128 NDPBs (Non-departmental public bodies 57 neo-functionalism 135 Nordic Council 25, 113 NORPEC (Network of Regional Parliamentary European Committees) 110 Nice, Treaty of 87, 93 Northern Ireland 112–3 Oldfather, Irene 108

Laeken Summit 94 Länder: access to council of EU 104; autonomy 9, 65, 84, 96–7; relations with the EU 85–7, Spanish ACs learn from 91; third level mobilisation 92–3;, 136, 140 Lang, Ian 21, 64 Liège Resolution 93, 102 Liberal Party: 1975 referendum 19 local government, Europeanisation of 52–3, 56–60 Lochhead, Richard 103 London Convention 1964, 119 Luxembourg 129 Luxembourg Compromise 120, 137–8 MacCormick, Sir Neil 103; on post-sovereignty 133–4 Macmillan, Harold 11 McCabe, Tom 111 McConnell, Jack 98–106, 111, 137 McLeish, Henry 1, 98, 100–1, 105, 115, 137 MacShane, Dr Denis 108 Major, John 21, 82, 140 Martin, David 20, 104 Memorandum of Understanding 70–6, 135; see also concordats and joint ministerial committee Millan, Henry 28 MAFF (Ministry of Agriculture Food and Fisheries) 17, 127 Miller, Bill 103

para-diplomacy 35, 135–6, 138 plaid Cymru 134 plurinational diplomacy 35 Portugal 123 post Sovereignty 7, 133–4 pragmatic government 16, 18, 135; new pragmatism 70; testing of 60–4 precautionary Principle 124 privy council 123 proportionality, principle of 140 proto-diplomacy 35, 95, 135–6, 137, 138 Putin, President 111 QMV (Qualified Majority Voting) 5, 66, 89, 131, 138; see also the council of the EU Quebec 84, 95–6 quota, fishing: UK share of 119; flaws of 120; quota hoppers 122 referendum, 1975, on membership of the EEC 18–19 referendum, 1979, on constitutional change within the UK 14 RAC (Regional Advisory Councils) 129 regional affairs council 110, 114, 139 regional Councils, abolition of 59 regional Offices in Brussels 29–30, 134, 136 regionalisation of the CFP 128–30 RegLeg, 94, 100–1, 110, 134; see also Flanders Group

Index 193 Reid, Dr John 123 relative stability, principle of 119–20 RETI (Association of European Regions of Industrial Technology) 29 Ridley, Nicolas 17 Rippon, Geoffrey 37 Robertson, John Home 108 Royal Commission on the Constitution 14. 16, 18 Salmond, Alex 99 Save Britain’s Fish 122 Scandinavia 105 SWA (Scotch Whisky Association) 61–2, 64 Scotland Act (1998) 3, 67–8, 123; judicial control of 75; concordats 76 Scotland Europa 19, 21, 58–9 Scotland House 68, 103–4, 109, 114 Scotland Office 67 Scottish Adjacent Boundaries Order (1999) 123 Scottish Constitutional Convention 68 Scottish Crofters Union 64 Scottish Enterprise 58 Scottish Financial Enterprise 61 (SFF) Scottish Fishermen’s Federation: response to fishing crisis 125–8 Scottish National Party: letter to Macmillan in 1961 11; early reaction to EU membership 19, independence in the EU 19–21, 134; SNP councils 58; the BSE ban 63; internationalism 106; Afghanistan and Iraq 111; Council of the Isles 112–3 Scottish Office: secondments to UKRep 52; Europeanisation of 54–6; ministerial leadership 64; academic discourse on influence and autonomy 4–6; views on EU prior to accession 12–13; influence within the UK 16–18; Education Department 55–6; European Funds and Co-ordination Division 45; survey of European functions, 1990 56 Scottish Parliament: European and External Relations Committee: 47, 68, 103, 106–10, 139; Finance Committee 48; fisheries 123, 125 Presiding officer 111 Scottish White Fish Producers’ Association 127 Scrutiny reserve, principle of 109 SSGA (Scottish Salmon Growers Association) 17

STUC (Scottish Trades Union Congress) 12, 58 Sea Fish (Conservation) Act 122 Secretary of State for Scotland: 1975 White Paper 16; ear of the PM 18, Ian Lang 21; Gordon Campbell 37; on EU funds 40; Scotch Whisky Association 54; finance sector 61; BSE crisis 63; fishing crisis 123 Shetland Box 119–20 Sillars, Jim 19–20 SEA (Single European Act) 5, 26, 41, 51, 86 Single Market 5, 40, 50 South Africa 106, 137 Spain autonomy of ACs 9; Bavaria’s crusade of the strong 29; friction with Basques over inward investment 96; Scottish Executive working with, 105; CFP 123–2, 125; see also Acs, Basques, Catalonia Stevenson, Struan 103 Strathclyde Regional Council 47, 52 structural funds: additionality 46–8, 50, 80, 140; community support framework 43; concentration 41, 48; Delors I 41; Delors II 42; ERDF (European Regional Development Fund), sums allocated to Scotland 1975–99 37; fishing aid 126–7; Partnership 31, 41, 44–6; programming 48 quota system 40; regional development plan 43; single programming document 43–4 Sweden 105, 123 Swinney, John 111 subsidiarity: absence of EU funding 45; allocation of political authority 133–4; competence creep 75; European convention 139–40 Flanders Group 100–1;FRG 86; interpretations of 30; Länder 87; multi-level governance 32; McConnell’s interest in 102–3; relevance to third level 5; subsidiarity council 103, 114, 136; third level mobilisation 92–3 Tartan Day 101, 105 Taylor, Brian 100 Taylor, Teddy 19 Thatcher, Margaret 1, 21, 82, 140; Bruges Declaration 20 third level mobilisation 5, 92–4

194 Index Treasury 8, 42, 50 Treaty on European Union 5, 22, 26, 30, 86, 88 Tuscany 105–6 UKRep 51–2, 59 USA 94, 137, 138 Wales 135; see also Plaid Cymru Wallace, Jim 99, 100, 101, 110, 103 Western Isles Council 53 Westminster: House of Commons 21–2; Scrutiny Reserve, Principle of 22; Select Committee on European Legislation 107; House of Lords: Report on inter-institutional relations

78–9; Select Committee on the Constitution 77 white paper, 1975, on devolution 14, 16, 69 white paper, 1997, on Scottish Parliament 68–9 Whitelaw, William 45 Wilson, Harold 19 Winning, Cardinal 10 World Trade Organisation 138 WWF (World Wildlife Fund) 64, 106, 125, 131 Younger, Sir George 38–9 Zonalisation, of fisheries 128–9, 137