Mr Walford
Copy to:
Mr Gordon
Mr Sinclair
Mr Ewing
Mr Ferrie
Mr Ferguson
Mrs Nelson
Mr 0 Kelly
Mr Rogers
Ms Hibbert
Mr Burgess
Parliamentary Clerk
SCOTLAND BILL: FUTURE WESTMINSTER LEGISLATION
1.
I refer to your minute of yesterday and have the following comments.
Consent mechanism
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2.1
It seems to me that the Scottish Parliament will have to consent both -
(a)
to the proposal that a Bill dealing with devolved matters should be dealt with
at Westminsterrather than by itself;
(b)
to the principle of the Bill itself.
2.2
However, I fmd it difficult to conceive of ways in which the Scottish Parliament could
continue to have a say over the detail of what is in the Bill when it is going through
Westminster. Is the Scottish Parliament to be able to suggest amendments to the Bill? Is the
Scottish Parliament to approve the Bill in its final form before it is submitted for Royal
Assent? Consideration should be given to practical questions such as these but my own
feeling at present is that they may prove more troublesome than they are worth because they
may also involve changes in Westminster procedUrewhich may be difficult to achieve.
2.3
It may be that the general principle to be adopted is that, if the Scottish Parliament has
seen fit to allow Westminster to legislate with regard to devolved matters, then they simply
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lose control over the detail of that legislation. If they do not like it, then the Scottish
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Parliament could introduce a Bill of their own to reverse the effects of the Westminster
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legislation so far as it applies to devolved matters.
Ministerial. and official responsibilities
3.1
If I have understood you correctly, you appear to be suggesting in paragraphs 7-9 of
your minute that Ministerial responsibility for Westminster legislation dealing with.devolved
I
matters should rest with Scottish Ministers and their officials..
Nt
3.2
If this is what you are suggesting, I do not think that this can be right. There can be
no circumstances in which Scottish Ministers will be responsible or answerable in the
Westminster Parliament. The responsibility for such Scottish Westminster legislation (or the
IJ002118
1
Scottish part of GB legislation) must rest with a Minister of the Crown in the UK
Government.
The question which I asked in my minute of 6 November is which UK
Minister? Is it to be the Secretary of State for Scotland?
3.3
It seems to me that the same position would also apply to officials. It does not seem
to me to be constitutionally appropriate for officials in the Scottish Administration to brief
UK Ministers. In terms of the amended Civil Service Order in Council, tliey will owe their
loyalties to Scottish Ministers and not to UK Ministers. UK Ministers will expect to be
serviced by their own officials. Accordingly, if it is the Secretary of State for Scotland who is
to answer in the Westminster Parliament for Scottish legislation dealing with devolved
matters then he will have to have staff to deal with that legislation. Such staffmay, of course,
be seconded to him ITomthe Scottish Administration. It may be that the Bill teams working
on Scottish Westminster legislation on D-day will not transfer to the Scottish Administration
on that date but remain with the UK Government until the Bill is enacted.
/
3.4
There would of course be no objection to the relevant UK Minister and his officials
consulting Scottish Ministers and their officials and indeed I would expect this to be the case.
/
/
"
However, this cannot, in itself, be regarded as a substitute for finding an appropriate UK
Minister with officials who is responsible for the Scottish legislation.
3.5
If the Secretary of State for Scotland is to be the responsible UK Minister, then the
nature of his responsibilities will require to be quite carefully described so as to avoid him
becoming generally accountable to Scottish MPs at Westminster about devolved matters. To
some extent, however, this will be unavoidable. For example, if the Secretary of State for
Scotland is dealing with the Scottish part of the Water Charges Bill, Scottish MPs are likely
to continue to hold him accountable and answerable for anything about the water industry in
Scotland even after D-day, particularly if it falls within the scope of that Bill. It seems to me
that all this requires to be raised and worked out with the President of the Council and the ~
House of Commons Procedural Committee.
3.6
As I mentioned in my minute to Mr Rogers of 6 November, these problems simply
demonstrate just how unsatisfactory it is to allow Westminster to continue to legislate on
devolved matters, other than quite exceptionally. Some Departments simply do not appear to
have woken up to the fact of devolution.
lain Jamieson
J L JAMIESON
10 November 1998
Constitution Group
Solicitor's Office
l-C
Victoria Quay
IJ002118
2
TeamMa.il
Received
Mail
Sender
: Burgess
WG
(George)
Recipient
: Walford
I
(Ian) #
Subject
: RE:FUTURE
LEGISLATION
AT WESTMINSTER
Sent
: 10/11/1998
09:16
Walford
I
(Ian) £:
>Please
see attached
3 page minute.
Your minute
sets out a possible
mechanism
for the Scottish
Parliament
to
signify
consent
to legislation
at Westminster
in devolved
areas.
Would
you envisage
this mechanism
also extending
to private
legislation,
where
there might well be even more need
for something
like it?
George
J
/
From: Ian Walford
CG-Functions
Date: 9 November 1998
Mr .Ewing
Copy to:
Mr Gordon
Mr Jamieson
Mr Ewing
Mr Sinclair
Mr Ferguson, LD
Mr Ferne
Mr 0 Kelly
Mrs Nelson
Mr Rogers
Ms Hibbert
Mr Burgess
Parly Clerk
SCOTLAND BILL: FUTURE WESTMINSTER LEGISLATION
1.
I refer to Mr Jamieson's minute of 6 November addressed to Mr Rogers. You, I and
Mr Ferguson (to whom I am sending a copy ofMr Jamieson's minute) all have an interest in
this issue. I am also copying this minute and Mr Jamieson's to Owen Kelly, because the
possibility may arise trom time to time of UK or GB legislation being introduced at
Westminster to implement an EU obligation which relates to devolved matters, as
foreshadowed in 5.8 of the White Paper, and to Parly Clerk.
2.
You will recall that the whole matter of future legislation at Westminster was
addressed in the PS/minute which Mr Gordon put to the· Secretary of State in June. In it he
recommended that the Secretary of State seek colleagues' agreement to a convention
governing future legislation on devolved matters at Westminster. As you know, DSWR
colleagues did subsequently agree that a convention should be established under which
Westminster would normally only legislate on devolved matters with the consent of the
Scottish Parliament. This convention was announced in the House of Lords in July during
the passage of the Scotland Bill.
3.
As part of the same submission Mr Gordon gave Ministers details of the then
proposed legislation for the 1998-99 session which would relate to devolved matters. This
information had been assembled by Liaison Division. Ministers were invited to consider
whether any legislation relating to devolved matters should be introduced in the 1998-99
session bearing in mind the risks that (a) it could be criticised for pre-empting the Scottish
Parliament and (b) that it could still be before Parliament on D-Day. Ministers took some
time to consider the list. They eventually decided that for various operational reasons it was
essential that the Water Charges Bill and Road Traffic (NHS Charges) Bill should be
introduced in 1998-99 in spite of the possible risks. (In fact it i~ intended that the latter
should be enacted and commenced before 1 April 1999). I understand that Ministers also
decided that some quite technical Scottish provisions should be included in a Modernisation
of Justice Bill. I am not aware of any other candidates for the 1998-99 session, but I would
be grateful if Mr Ferguson could let us know whether there are any and,·if so, whether there is
any intelligence on when they are likely to receive Royal Assent.
4.
Mr Jamieson has raised some questions which we need to consider about how any
(presumably very in.:&equent)legislation on devolved matters at Westminster should be
handled at Westminster and in the Scottish Parliament, both in the 1998-99 'transitional'
session and beyond. (The Food Standards Agency Bill may be a significant early test case,
probably in the year 1999-2000).
5.
The first (obvious) point to make is that, if the convention is observed, legislation on
devolved matters will only be introduced if the Scottish Parliament has consented to it. We
have spoken before about the mechanism by which Scottish Ministers would obtain the
Parliament's consent, on the assumption that they would themselves have had prior
discussions with the UK Government about the possibility of legislation at Westminster on a
particular matter and agreed that it would be desirable. I think your view is that a Scottish
Minister would put a motion to the Scottish Parliament explaining and justifying the intention
to legislate at Westminster. The motion would presumably need to secure a majority in a
vote in order to signify consent. You also take the view, I think, that only consent to the
)
principle of the legislation would need to be obtained, rather than consent for the legislation
in its final form. It would be for Scottish Ministers to negotiate with UK Ministers on the
precise terms of the proposed legislation. There is, however, an argument for Scottish
Ministers being required under Standing Orders to report to the Parliament at periodic
intervals during the passage of the relevant legislation through Westminster - for example
after the completion of the Commons stages - if only to demonstrate that they are keeping in
close touch with progress.
6.
I assume that this 'consent procedure' will need to be activated for the first time
immediately after D-day in respect of any legislation on devolved matters which is still before
Westminster.
7.
Mr Jamieson also asked about the implications of the likely outcome of the Procedure
Committee's inquiry into the consequences of devolution. My view is that any legislation
relating to devolved matters which is before Westminster on D-Day and any questions about
it should continue to be handled by the Minister who was handling it before D-day. Scottish
Ministers would nt~edto make this clear when they made their statement seeking consent (see
i '
paragraph 6).
Scottish Ministers might also make it clear then that they expect to be
consulted by UK Ministers about any possible Government amendments to the legislation
and that they expect their officials to be involved in briefing the relevant UK Minister in
charge of the Bill(s). Such .arrangements,which would apply in respect of future legislation
introduced at Westminster under the convention as well as unfinished legislation in the 1998-
99 session, would be perfectly consistent with the arrangements for consultation and
information exchange which we are intending should be put in concordats, and indeed with
the convention itself.
8.
In 1999-2000 and beyond it will be for the Prime Minister to decide which of his
Ministers should handle legislation at Westminsterrelating to devolved matters, although this
would presuma?ly be a matter for discussion with Scottish Ministers in the period before the
latter seek the consent of Holyrood to the legislation in question.
9.
Mr Jamieson asked what is to happen if questions are raised in the Scottish Parliament
about the legislation before Westminster. I assume that Standing Orders would make it clear
that the Scottish Minister who sought the consent of the Scottish Parliament would be
answerable in connection with any aspect of the relevant piece of legislation. On occasions
he/she would no doubt need to seek briefmg from the relevant UK Department.
10.
I would be grateful for your views and those of copy recipients on what is proposed.
Guidance on these matters will need to be disseminated throughout The Scottish Office and
associated Departments quite quickly and included in comprehensive guidance on the
devolution settlement in due course.
IAN WALFORD
9 November 1998
CG-Functions
Room G-H94
VQ
Ext 45532
(
Document Outline
