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From: Ian Walford
~9~~
CG-Functions
19 November 1998
:J.- J"J~~v ?
Mr Ewing
Copy to:
Mr Gordon
Mr Ferguson
Mr Kelly
:
Mr Jamieson
Dr Wildgoose
Ms ~i~
.
Mr ~ers
.
Parhamentary Clerk.
1-. 1J;::.~'f"e~"
SCOTLAND ACT: FUTURE WESTMINSTER LEGISLATION
1. i
You and I and some copy recipients
attended
a meeting
yesterday
chaired by
Mr.Gordon which discussed future· Westminster legislation on devolved matters in the light
ofth~~xchlli1g~of
minutes last week. . This minute records my understandingof
what was
"
agreed.
2.
It was agreed that for constitUtional and practical reasons every effort should be made
in future to keep to ~
absolute .11Ji.!rimumthe amo~"
of legis1~tion, at. We~ste.r
~?
devolved matters, but that there was uiilikely to be much political demand for such legislation
in any event. UK Ministers are unlikely to favour bids for Scottish legislation given that slots
in the Westminster legislative progriunnie are normally in short supply, and there is unlikely
to be much appetite among the new devolved Scottish politicians for Westminster legislation
on devolved matters.
It was agreed nevertheless that' this message should be highlighted in
relevant guidance over the next few months.
3.
It was agreed that the specific issues which were raised in the minutes last w~ek
divide essentially into 2 categories:
transitional, relating to legislation in the forthcoming
.
1998/99 programme,
and longer-term issues, relating to Parliamentary
sessions 1999/2000
and beyond.
4.
On the transitional issues the following points were made:
4.1
Mr Ferguson said that 4e hoped that most ofthe (largely uncontroversial) Bills
which contain devolved Scottish provisions in 1998/99 (listed in the annex to his
minute of 12 November) will have received Royal Assent before D-day, but that this
could not by any means be guaranteed;
4.2
if any of the Bills were still before Westminster on D-Day, incoming Scottish
Ministers would probably need to make a statement to the Parliament explaining the
position.
There would be little point at that stage in formally seeking Parliament's
consent for any legislation given that it ,should by then have virtually completed its
TCR03911.I 18
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passage, but Ministers could stress--thaWlle
Parliament would be free to amend or
that legislation in the future if it wished to do so;
4.3
Mr Kelly agreed to trawl Departments as soori as possible asking them to
identify any ED legislative requirements which are likely to need to be implemented
over the next few months, and at the same time to encourage Divisions to make early
decisions about which could or should be put through Westminster before the
elections and which should be held back and put before the Scottish Parliament;~~-c- ..
)~ > L-vM
.
5,\yA..#~:1
4.4
it will be for the UK Government to decide WhiCll-Miffisier-Sii6\mrreaa--6n~\"~\--~~I~~-'
~
Scottish provisions which are still before the Westminster Parliament on D-day, but :
~
~
the expectatiOI~-w~ -that -the Secretary of State for Scotland would need to tak~'
.~ II'
)~ ""
" :es~onsi~il~ty. This might stre~~en th~ case for the Secretary of State to have one
y.J,
fvv f"';
JUnIorMInls~erfor a short transItionalpenod; and
(
f(~S
(r
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4.5
Mr Ferguson agreed to consider whether there would be merit in the Secret~
D.f'.9 i
'Ze. .Jrr-"""-~.
of State writing to colleagues reasonably soon after the Queen's speech making some'
~,~
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oftheabovepoints.
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5.
As to'legislation in 1999/2000 and beyond, the following points were agreed:"
5.1
the Scottish Ministers would need to formally seek the consent of the
Parliament for any proposed legislation at Westminster. The consent would need to
be obtained both for the proposal that a Bill should be dealt with at Westminster rather
-~-
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than at Holyrood and for the principle of the relevant piece of legislation itself;
5.3
the lead
named devolved Scottish provisions
. would need to make it clear in a statement to Parliament when the Bill was introduced .
~~
~ ~
(or at Second Reading) that the provisions were being ,introduced with the consent of \
the Scottish Parliament, that he would be keeping in close touch with and consulting \
Scottish Ministers during the passage of the legislation, and that while he would be .
anSwerable to Parliament for the passage of the devolved legislation he would not beJ
generally accountablefor
the relevant devolved matter.
It was agreed that the i
Westminster Procedure Committee should ideally reflect in its report into the effects I \
of devolution this caveat to the general rule that UK Ministers would not in future ;
answer questions on devolved matters; and
~
..
5.4
officials of the Scottish Administration would be able to brief UK Ministers
leading on Bills containing Scottish provisions, but on' the clear understanding that
they were part of a Bill Team which would be led by an official from the UK
Department and that the UK Department would have the final say' on what briefing
went to the Minister. Nevertheless it was felt that this approach was preferable to
\X
TCR03911.l18
2.

'. t
. '
seconding Scottish officials to UK-Departments for the'duration of a Bill because they
would no longer then be accountable to Scottish Ministers.
you will continue to lead on input to the Procedure
Committee
and in developing
the*
6.
As to taking forward what has been agreed for 1999-2000 and beyond, I assume that
---
procedure for obtaining consent trom the Scottish Parliament for legislation at Westminster.
For my part I shall ensure that what has been agreed is reflected in the DevCom guidance
(both oral,- through
the seminars;n andin-written---guidanceyandthaf
itisreflecfealli--
appropriate terms. ~ the. Memorandum of Understanding betw~~~~
__
~_9~~~~~!~~-
the devolved administratlOns:-----------------------
--------
---
7.
Mr Jamieson, Dr Wildgoose and I discussed briefly afterwards' the implications of
what had been agreed for the FSA Bill.
We agreed that for the time being, and subject to
Ministers' views, it .would be sensible to press ahead with the plans to put provisions about
the (devolved) Scottish involvement
in the FSA on the face of the Bill for consultative
purposes, but that Whitehall colleagues and indeed the general public would need to be
reminded
continually
that the proposal that the legislation
in 1999-2000
should cover
Scotland would be subject to the ~onsent of the Scottish Parliament.
IAN WALFORD
Constitution Group - Functions
Room G-H94
VQ
Ext 45532
~.
19 November 1998
-
TCR03911.118
3.

Mr Walford
Copy to
Mr Gordon
Mr Sinclair
Mr Jamieson
Mr Ferrie
Mr Ewing
Mrs Nelson
Mr Burgess
Ms Hibbert
•••• '->.
SCOTLANDBILL: FUTURE WESTMINSTER LEGISLATION'-
er-:
j
~:
_', I
I have commented separately on the question of the Westminster legislative programme for 1998/99. ·",..~~-~:Y
Mr Jamieson's minutes of 6, 10 and 11 November raise a number of other points which need to be
resolved quite quickly if we are going to be able to take sensible decisions on the role and size of
Secretary of State's Office.
2.
In relation to the Consent Mechanism
I agree wholeheartedly
with the general principle in
paragraph 2.3 of lain Jamieson's
minute of LO November (viz. after consent the Scottish Parliament
lose control over the detail).
Any other proposition would .impose a considerable additional burden
on the Westminster Parliament and on the Secretary of State and hislher Office.
3.
If I understand the position correctly, lain Jamieson appears to be saying that, in relation to
any "devolved" legislation handled by Westminster:-
•
the Secretary of State will either be solely or jointly responsible
with the relevant UK 7
Minister(s) for all such devolved legislation;
and
•
that it will be constitutionally
inappropriate
for Scottish Executive officials to brief UK, /~
Ministers - though UK Ministers may consult Scottish Executive officials.
v
If this is right, and we cannot find some pragmatic way round the consequential
difficulties, then it
has fairly weighty implications for the role of the Secretary of State and his Office.
4.
For a start it would appear to drive a coach and horses through what I regard as a crucial
Westminster principle - that the Secretary of State should not have to be routinely
answerable to
Westminster MPs on devolved matters.
If Secretary of State deals with devolved matters in the
context of GB/UK legislation then it will be difficult to persuade the House authorities that he should
not do so in relation to PQs, adjournment debates, Scottish Grand Committee etc.
Such a position
would have substantial implications for the envisaged role of Secretary of State and for this office.
5.
If, as Mr Jamieson claims, the Secretary of State cannot reasonably
opt out of devolved
legislation without either an (inappropriate)
Transfer of Functions
to UK Ministers,
on (unlikely)
Prime Ministerial
diktat then it would seem preferable
to restrict
"devolved"
legislation
going
through Westminster to the absolute minimum.
This line would result in some unnecessary double-
handling, for example, legislation implementing
ED directives on eg habitats etc having to be put
through separately by Westminster and the Scottish Parliament which, on the face of things, ought to '
be perfectly capable of being dealt with satisfactorily
by Westminster
on a GB/UK basis by the
relevant UK Minister.
6.
In view of the potential implications of decisions taken in relation to these matters I would be
grateful if I could be included in any discussions between John Ewing and lain Jamieson.
E W FERGUSON
12 November 1998
Room 6/2
Dover House
FFAII03D.DOC

Mr Walford
Copy to
Mr Gordon
Mr Sinclair
Mr Ewing
Mr Ferrie
Ms Hibbert
Mrs Nelson
Mr Burgess
SCOTLAND BILL: FUTURE WESTMINSTER LEGISLATION
Thank you for sending me a copy of Ian Jamieson's minute of 6 November and of your
minute to John Ewing of 9 November. I have since seen the further exchanges between you
on 10 and 11 November.
2.'
Cabinet agreed the legislative programme for 1998/99 last Thursday.
The Scottish
involvement is set out in the attached Annex.
I have tried to categorise the Bills into
devolved and reserved as best I can, but I cannot guarantee that I have got it right in every
·case.
)
3.
You asked when these Bills are likely to receive Royal Assent.
I know that every
effort is to be made to enact the NHS (Amendment) Bill before 1 April 1999, but that will be
a tall order given that the next Session of Parliament is not due to start until 24 November. I
think that the reality is that most of the Bills listed in the Annex will still be on the go after
6 May and some will still be on the go after 1 July.
4.
I can see no way round the likelihood that at least some Bills with devolved Scottish
provisions will still be on the go when the Scottish Parliament becomes operational.
However, these Bills are likely to be close to completing their passage through Westminster
and I am not sure that activating the "consent procedure" is likely to be meaningful at such an
advanced stage of the game. Will there be sufficient time between D-day and Recess to hold
the Debate(s) in the Scottish Parliament?
What happens to the legislation if the Scottish
Parliament withholds consent in relation to the principle?
Will all of the Scottish devolved
provisions in the Bill(s) simply fall or will Westminster simply take note of the Scottish
Parliament vote and enact the Bill - leaving it to the Scottish Parliament to take corrective
legislative action, as they deem necessary?
5.
I recognise that, in political terms, it may not be possible to avoid activating the
"consent procedure" but it seems to me to be potentially fraught with difficulties.
On the
other hand, if you consider the actual po~iciesunderlying the Bills listed in the Annex it is
difficult to envisage any complexion of Scottish Parliament failing to consent to all of the
Bills listed in the programme, devolved and Private Members categories.
The possible
exception is the NHS (Amendment) Bill, but it is almost certain to be on the -statute book
before the Scottish Parliament becomes operational.
In my view the difficulties here are
likely to be more hypothetical than real.
6.
To enable you to consider this information I will comment separately on the other
1';_
matters raised by lain Jamieson.
E W FERGUSON
11 November 1998
Room 6/2
FFAI004D.DOC

Dover House
if 56800
Annex
Scottish Involvement in the Westminster Legislative Programme 1998/99
Scottish Programme Bill
Scottish Enterprise (Financial Limits Bill)
GB Bills with devolved Scottish provisions
Water Charges Bill
NHS (Amendment) Bill
Modernisation of Justice Bill
Road Traffic Act (NHS Charges) - uncontroversial Bill which may not run
GB Bills with reserved Scottish provisions
Welfare Reform and Pension Sharing
Age of Consent and Abuse of Trust Bill
Disability Rights Commission
Working Families Tax Credit
Asylum and Immigration
Fairness at Work
Scottish Private Members' Bills
Consent to Medical Treatment
Leasehold Casualties
Incapax Patients' Fund
FFA1 004D.DOC

Document Outline