s/2/IJ
Hibbert EW (Ewa)
From:
Hibbert EW (Ewa)
Sent:
1~ January 1999 11:19
To:
Lewis E (Liz)
Subject:
Asyll!m and Immigration Bill
Liz,
This minute contains general info about future (including this session) legislation at Westminster which
deals with devolved matters, as discussed.
I shall also send some info shortly about the specific point raised by Mr St Clair in his minute of yesterday
which explains that it is possible to stop functions transferring to the Scottish Ministers where those
functions have been conferred on the Secretary of State in a GB Bill and where the function relates to a
devolved matter. In this situation you would normally want the function to transfer, and you do this by
specifying that the Bill is a pre-commencement enactment for ~e purposes of the Scotland Act and this
}ggers the automatic transfer provisions. If you don't specify, they don't transfer - but more on this
shortly ..
(
Ewa Hibbert
X45535 -
wolfar8l8formbill1 80I.d
DC
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Recipients as per envelope,
Further to Mr St Clair's minute of yesterday, I attach a draft guidance note which deals
with the question raised in para 12 of that minute. The function of designating reception
zones in the Immigration and Asylum Bill will only be a concern if it is a function which
relates to a devolved matter. If it is, then the draft note explains how it can be made to
transfer to the Scottish Ministers or how it can be prevented from transferring to them.
Ewa Hibbert
X45535
guidancefuturalogtr ••••
t.'1901....
(
[Draft as at 19/1/98 - Not yet cleared by CG Solicitors - please do not distribute outside
TSO]
15.3
Transfer
of functions under future Westminster
legislation about devolved
matters
The case of functions under future Westminster
legislation which would be exercisable
within devolved competence has to be seen within the context of the expectation
that a
convention
will be established
whereby Westminster
will not normally
legislate
about
devolved matters in Scotland without the consent of the Scottish Parliament (see Guidance
Note 3). For example, it may be agreed that there should be a common code for the GB as a
whole about a particular devolved matter, or that a new cross-border public authority should
be established.
Ministerial functions under such an Act which are exercisable within devolved competence
would not automatically transfer to the Scottish Ministers under section 53 because the Act
would not be a "pre-commencement
enactment".
As a general rule, the proper way for the
(-
Act to provide for the transfer of the functions to the Scottish Ministers would be for it to
deem itself to be a pre-commencement
enactmenti for the purposes of the Scotland Act, but
otherwise to be silent about devolution.
Section 53 and any other relevant provisions in the
Scotland Act would then have effect. Again, explanatory material could be made available to
make the intention clear.
As an alternative, it would of course be technically possible for the relevant enactment to
confer the functions directly upon the Scottish Ministers.
This approach might be considered
in certain cases where the use of the powers in the Scotland Act would be particularly
torturous.
And it could be said to be more acceptable in principle than in· the case of
functions relating to reserved matters because the Scottish Parliament will have consented to
the proposal for legislation at Westminster.
However, if functions concerned with devolved
Scotland are conferred directly on the Scottish Ministers by a Westminster Bill, their exercise
would not be limited by the devolved competence test.
Consequently,
the functions might
not be exercisable compatibly with other functions of the Scottish Ministers on the same
topic. Such a Bill would also require to be drafted carefully to take into account the scheme
of devolution in Scotland, for example so as to not to pre-judge the resolution in Scotland of
issues such as how functions will be exercised by members of the Scottish Executive within
devolved competence - for example, whether functions should be conferred on the Lord
Advocate, the First Minister or one of the public offices that will foim. part of the Scottish
Administration - or what the mechanisms will be for the payment of sums into or out of the
Scottish Consolidated Fund.
In general, therefore, a safer approach will be that outlined in
the previous paragraph.
On occasion, of course, the intention may be that Ministerial
functions
conferred by a
Westminster Bill which are exercisable within devolved competence should not transfer to
the Scottish Ministers. Not deeming such a Bill to be a pre-commencement
enactment would
prevent the functions ITom transferring to the Scottish Ministers under section 53, but it
would not protect the Act ftom being amended by the Scottish Parliament.
Therefore in sucli
a case, the relevant provision should be added to the provisions listed in Part I of Schedule 4
which are protected ITom modification by the Scottish Parliament.
This would prevent the
Scottish Parliament ITom amending the provision and will also prevent the transfer of the
functions to the Scottish Ministers by section 53ii,
.
i This will not make subordinate
legislation under the Bill a pre-commencement
enactment.
But the effect will
be that any power conferred by the Bill to make subordinate legislation,
so far as exercisable within devolved
competence,
will if it is a Minister power pass to the Scottish Ministers.
If it is a power of Her Majesty in
Council, administrative
arrangements
will ensure that it will be exercisable on the advice of the First Minister
rather than a Minister of the Crown (see chapter 6).
jj
Schedule 4 can be amended by an Order in Council under section 30, subject to the approval
of both
Parliaments. As explained in guidance note 3, this is the route which should in general be taken, rather than an
amendment directly by a Westminster Act.
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From: Ewa W Hibbert
CGIES -
. ns Division
;'
Mr MacLeod, EID
Copy to:Mr Foulis, EID
Mr Walford, CG-F
Mr Duke, Sols Office
Ms McLeod, Sols Office
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SCOTLAND
ACT:
FUTURE
WESTMINSTER
LEGISLATION
ON DEVOLVED
MATTERS:
WELFARE
REFORM
BILL:
AMENDMENTS
TO
THE
EMPLOYMENT
AND TRAINING ACT 1973
1..
I refer to your minute of today to Mr Walford.
I am replying in his absence this
afternoon.
I
I
I
General points about future Westminster
legislation on devolved matters
2.
First, a couple of general points about future Westminster legislation on devolved
matters. Mr Ferguson in Liaison Division is keeping a note of all Bills in the current session
which deal with devolved matters and I suggest that you alert him to this one in case he is not
yet aware that this Bill does deal with a devolved matter .
. '
3.
Constitution
Group's general advice is that for constitutional
and practical reasqns'
every effort should be made ftom December
1998 to keep to an absolute minimum the
amount of legislation at Westminster on devolved matters.
The Welfare Reform Bill deals
with the devolved matter of training for employment, or perhaps to put it more accurately, it
deals with matters other than those which are reserved by Schedule
5.
The Scottish
Parliament could therefore legislate in relation to these non-reserved matters itself.
4.
Therefore our initial view, is usually to resist new Westminster Bills ftom dealing with
devolved matters and to argue that the matter should be left for the .Scottish Parliament.
However, there are already a number of Bills in the current parliamentary
session' (some of
which have not yet been introduced or reached second reading) which contain provisions
dealing with devolved matters.
We have decided to agree to them being dealt with at'
Westminster because they are largely uncontroversial
and/or minor, they are desirable, it is
convenient to get them dealt with in this session, and they will mostly have receiyed R~yal
Assent before D-Day (although this is not guaranteed).
The Welfare Reform Bill appears to
meet some of these criteria, and' I suppose the bottom line is that Ministers will want ~e
whole paCkage in the Bill to apply in Scotland aswell - but to the extent that it relate to
devolved matters the Scottish Parliament will of course be able to legislate about those
matters after 1 July.
'
5.
If, as you expect, the Bill is still before Westminster on D-Day, then our advice is that
incoming Scottish Ministers
would probably need to make a· statement' to the Sco¢sh
Parliament explaining the position.
There would belittle
point at that stage in formally
seeking the Scottish ParliameI1t's consent for the Bill given that it should by then be a good
way through its passage, but the Scottish Ministers could stress, that the Scottish Parliament
would be ftee to amend or alter that legislation in the future if it wished to do so within its
legisla~ve competence ..
welfarereformbill180 l.doc
1
,
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6.
It will be for the UK Government to decide which Minister should lead on Scottish
provisions which are still before the Westminster Parliament on D-day, but the expectation is
that the Secretary of State for Scotland would need to take responsibility.
7.
The Bill should make as limited a degree of provision relating to devolved matters as
is possible to meet the agreed policy requirement so that we keep to a minimum the amount
of legislation at Westminster on devolved matters.
It should not be' used as a vehicle for
making other changes.
8.
If the Bill creates any Ministerial functions which are within devolved competence
and which should post-devolution
be exercised by the Scottish Ministers in or as regards
Scotland, or if it modifies any existing Ministerial functions, then the Bill should deein itself
to be a pre-commencement
enactment for the purposes of the Scotland Act 1998. This would
then allow those Ministerial functions within devolved competence to transfer automatically
to the Scottish Ministers under section 53 of the Scotland Act. The Bill would otherwise 'be
..
'
silent about devolution, although explanatory material should describy the overall outcome.
,
/
9.
This is a point which you will need to consider when you see the first draft of the
Adoption Bill.
You should consult your Divisional Solicitor to ensure that the appropriate
provision is made.
We hope to issue guidance about this in the next few weeks, but if you
have any urgent questions then please let me know.
Specific comments about amending the 1973 Act
10.
Your assessment
of the effect of paragraph
6 of Schedule
2 on
the Scottish
Parliament's ability to amend section 2 of the 1973 Act is not quite right. All that paragraph
6 does is protect the shared powers of the ,Minister of the Crown, which. relate to devolved
. matters but are shared by virtue by section 56,. from being changed
by the Scottish
Parliament.
The rest of section 2 to the extent that it relates to devolved matters, including
the functions that the Scottish Ministers exercise under section 2 can be changed by an Act of
the Scottish Parliament as it applies in or as regards Scotland.
However the reasons already
given above may make you want to do all the desired changes to section 2 in the Welfare
Reform Bill rather than waiting for the Scottish Parliament to do it in an Act of the Scottish·
Parliament.
11.
Ms McLeod's
interpretation of Part ill of Schedule 5 is correct: the extent of the
reservation of job search and support is fixed by reference to the subject matter of the 1973
Act as it stands on 1 July. Later changes to the Act do not affect what is reserved.
There is
no need to change the Schedule 5 entry.
12.
I have made some manuscript changes to the submission and these will follow shortly
by hand
Ewa W Hibbert
CG-Functions Division
G-H92, VQ
Ext 45535
welfarereformbilll801.doc
2
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Mr Stevens, SWSG
Copy to:
Mr Walford, CG-F
Mr Rogers, CG-F
Mr Ferguson, Liaison Division
Ms Brown, Sols Office
SCOTLAND
ACT:
FUTURE
WESTMINSTER
LEGISLATION
ON DEVOLVED
MATTERS:
PROPOSED
ADOPTION
BILL
1.
We discussed the proposed private member's Adoption Bill, which may be announced
next week, and what line to take about future legislation at Westminster which deals with
devolved matters.
The Bill is supported by the Department of Health but has not yet been
I
drafted or timetabled.
It is intended to' be a GB Bill.
I am copying this minute to Mr .
Ferguson in case he is not aware of this proposed Bill.
2.
Constitution Group's advice is that for constitutional and practical reasons every effort
,should be made ftom December
1998 to keep to an absolute minimum
the' amount of
legislation at Westminster on devolved matters.
The proposed Adoption Bill deals with the
implementation
of an international
convention
on recognising
inter-country
adoptions.
Adoption is a devolved matter and the Scottish Parliament is able and required to legislate for
the purpose of observing and giving effect to international obligations so far ~ they relate to
devolved matters.
The Scottish Parliament
could therefore implement
the convention in
Scotland after D-Day. You did not think that there was a pressing dead1lne for implementing
the convention which would compel us to agree to it being implemented in a GB Westminster
Bill prior to 1 July.
3.
Therefore my initial view would be, to resist and to argue that the matter should be left
for the Scottish Parliament.
However, there are already a number of Bills in the current
parliamentary session (some of which have not yet made much progress such as the Asylum
and Immigration Bill) which contain provisions dealing with devolved matters.
We have
decided
to agree to them being dealt with at Westminster
because
they are largely
uncontroversial and/or minor, they are desirable, it is convenient to get them dealt with in this
session, and they will mostly have received Royal Assent before D-Day (although this is not
guaranteed).
The Adoption Bill appears to fall within this category and I would therefore
tentatively say that we could agree to it being dealt with in this session as a GB Bill .. '
4.
If the Adoption Bill gets Royal, Assent before D-Day, then all well and g~od.
If it
were stillqefore
Westminster on D-Day, then our' advice is that incoming Scottish Ministers
would pFobably need to make a statement to the Scottish t8fg~ent
explaining the position.
There would be little point at that stage in fonna1ly seekiIl(trar'TI'~ft!'s
consent for the Bill
given that it should by then have mostly completed its passage, bu{Nrlmsters could stress that
the Scottish Parliament would be ftee to amend or alter that legislation in the future if it
wished to do so, as long as it was still in compliance with the international' obligation.
5.
It will be for the UK Government to decide which Minister should lead on Scottish
. provisions which are still before the Westminster Parliament on D-day, but the expectation is
that the Secretary of State for Scotland would need to take responsibility.
Ewa W Hibbert
CG-Functions Division
7 January 1999
6.
The Adoption Bill should make as limited a degree of provision relating to devolved
matters as is possible to meet the international obligation so that we keep to a minimum the
amount of legislation at Westminster on devolved matters.
It should not be used as a vehicle
for making other changes.
7.
I hope this is helpful. I would be happy to comment on your draft submission.
Ewa W Hibbert
CG-Functions Division
G-H92, VQ
,
Ext 45535
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Document Outline
