CABINET SECRETARIAT
CABINET
OFFICE
David Brew, Constitution Secretariat
70 Whitehall • London
SW1A 2AS
TELEPHONE: 0171-270 5917
• FAX: 0171-270 5910
E-Q],ail:
[email address] ..
David Rogers Esq
Constitution Group
Scottish Office
Victoria Quay
EDINBURGH
EH66QQ
Dear David
LEGISLATION AT WESTMINSTER ABOUT DEVOLVED MATTERS
Thank you for your letter of23 February. You sought comments on your draft paper
______________________
and__
~~__
~~_arrangements for securing UK Government Agreement.
---~~~--
---- -~
---------
As you may know, John Elvidge and Andrew Kennon here advise on these matters.
fBefore
either of us lets you have a considered Cabinet Office response, we should want
J to take the opportunity to consult internally. I suggest that that would be best done
once you have had an opportunity to produce a revised version of your paper. '.
Although there may be no direct parallel with Wales in relation to primary legislation, I
also continue to-believe that it will not be possible to reach a firm view on the way
forward in relation to Scotland until consideration of the Welsh interest in primary
.
legislation is further advanced. You wil1 wish to be aware that John Elvidge is in
discussion with Jon Shortridge with a view to circulating a paper to colleagues in short
order. You may wish to await that paper before redrafting your own.
As I told you on the telephone, I think the paper needs to be sharpened up considerably
to make clear what decisions are being sought from the UK. Government.
As far as I
can see, what you are looking for from this exercise is a statement from UMG about
how it will conduct itself in relation to business in the UK. Parliament.
It would
therefore be helpful if you could formulate more precisely what it is that you wish-UK.
Ministers to agree to. You may find it helpful if! set out the points that I have drawn
out of your paper as it stands, with some questions that have occurred to me .
.
Db209.let.doc
1
1. HMG should not introduce i;nilr"lxtending
to devolved matters in Scotland unless
the SP has first consented to the principle of the proposed legislation.
What is consent to the principle intended to mean? Is the convention better
~{) I
expressed as dependent on the consent of the Scottish Ministers, leaving them to
.
seek whatever "cover" they need from the SP? The equivp]!!-1JtsgIl~f!!lJio_nJluring
the ·Stormont era·~seem~tohave- refit-red trrtll~N{eiWirnn-l~-iii~.
-,.-=-------~-~~~-----
2. HMG should invite Scottish Ministers to seek the SP's views on any Private
Member's Bill following introduction in either House. It should oppose any Bill on
which consent has not been given by [Committee?] Stage.
Is this consent to the principle or to the detail? Would it make more sense to
•.
introduce a Scottish Clause to provide that the Bill would only be commenced in
Scotland on a resolution of the SP?
{dk5
3. HMG should invite Scottish Ministers to seek the SP's views on any private
legislation following introduction in either House. It should oppose any Bill on
which consent has not been given by [Committee?] Stage.
Is this consent to the principle or to the detail? Would it make more sense to
introduce a Scottish Clause to provide that the Bill would only be commenced in
Scotland on a resolution of the SP? Is anyone other than the SofS for Scotland likely
to be involved?
rU1~J..~
.
4. A UK Minister should account to the UK Parliament for any matter relating to UK
legislation on devolved Scotland in consultation with Scottish Ministers.
Which Minister should be accountable:
the Secretary of State for Scotland or the
Whitehall Minister? What is the breadth of this obligation?
When should
...~Jt' :;:;;::~~::::;/;~the!~qttish Minister.(after.completiOn
of~:s:ge/r:a~ ..
u
u
•••
_
~
~
5. UK Ministers should include Scottish officials in any Bill team. They should take
/'
account of any views expressed by the Scottish Parliament in respect of legislation
./
under consideration in Parliament.
e
This question has particular relevance to Wales.
6. UK MinisteJ:s should [not lay/withdraw] any affinnative SI affecting devolved
matters in Scotland unless the SP has made an affirmative resolution before
[laying/affirmative resolution in either House].
Do you really want to go this far? Is the position of Scottish Ministers not more
relevant (cf point 7)?
7. UK Ministers should not make negative resolution SIs for devolved matters in
Scotland without Scottish Ministers' consent irrespective of the views of the SP.
What happens ifwe are dealing with Regulations under S.2(2) European
Communities Act' to rectify a breach by the Scottish Administration?
8. If a negative resolution SI affecting devolved matters in Scotland is prayed against,
UK Ministers should ...
do what?
9. All of these conventions should come into force on 6 M~y.
Db209.let.doc
2
I hope these statements are helpful in concentrating minds. However, I am sure that no
convention to which Ministers might be prepared to subscribe could be expressed in
such absolute tenns.
-
.
A copy of my leu:erg~~~ t~Stcv~ Folllcl\Jy·~ !:he,~Ndsh OfIie6; t8 J800 EIYiGg8a.Rg~·
Andrew Kennon and to colleagues in the Constitution Secretariat. I should be grateful
if you would ensure that NI colleagues are involved in the next round.
Yours aye
David
D A
BREW
Copy to:
Steve Pomeroy, WO
John Elvidge, E&D Secretariat
Andrew Kennon, E&D Secretariat
Quentin Thomas, Constitution Secretariat
Rosemary Jeffreys, Constitution Secretariat
-----------~-----
---nu-----
Eaula_Cohen, .cQMtLtuti.Pn....s_~r~Jari~L
.
.__
..
_
Simon Goodwin, Constitution Secretariat
Graham Davies, Constitution Secretariat
Db209.let.doc
3
•.
Rogers
DA (David)
From:
Rogers DA (David)
Sent:
09 March 1999 19:20
/" ...-...-..•..\
To:
Walford IN (Ian)
(Q1tvfi
~
./ /"-, \,
Subject:
future leg: the Brew View
(
j,
~4
Spoke to D Brew
The Brew view
He was adamant that we would get a ''huge raspberry" if we circulated these proposals at Ministerial level
now, even on the basis that detail is to be sorted out by officials. He says there is great nervousness in
Whitehall about making any further devolution-related commitments (presumably because of opinion polls
and uncertainty about how the devolved bodies will act). He reckoned that the response would be ''why do
we need to decide now as an announcement would not be until after the election, why to we need to make an
announcement anyway, and why cannot we deal with each bill on a case by case basis?".
He pointed out
that the people we need to persuade are Mrs Beckett 'and the Lord Chancellor, as it is the former who will
.
wage the business in Parliament in order to implement the convention.
Therefore Mrs Beckett's
'is. advisers, John Elvidge and Andrew Kennon need to be on side. John has apparently aiready opined that he
sees no need to rush at these issues and offered to tell us that. And the Cabinet Office also want the Welsh
and Northern Irish on side before the proposals go more widely around Whitehall.
Therefore David is sure that the next stage should be for Robert to send our paper to John Elvidge, copied to
the Welsh and Northern Irish but not more widely, and perhaps suggesting a meeting.
~
..~
Incidentally, the Welsh paper mentioned by David is being drafted by John Elvidge and is near· to
(It( .
completion but we should not hold our breath.
My view
-~--Â¥ou can -try-speaking to David-ifyou-wan4- ()r--pefhaps-R~bertcould-UÂ¥speaking-to-JohnElvidge._.But1do
_
not think that you will get any joy. Indeed as you know I was a bit concerned originally that writing at
Ministerial level would be going off at half cock.
The Brew/Elvidge view seems to indicate that that could
\Yell be the case
..
("
~
aim is to get a policy agreed' now, and announ~ed as soon as possible after the election, so that we have
certainty about how the convention will operate (and because it seems right as a matter of principle that
Parliament is informed of the Government's intentions). From our point of view, the proposals look like
non-contentious flesh on the bones of the announcement last year, but I can see that Whitehall \yill be wary
of anything which removes the scope for interpreting the convention flexibly. Therefore it seems to me that
we will need to persuade Whitehall that muddling through on a case by case basis is not a viable option.
The arguments are: that muddling through on one case without thinking through the general issues could
lead to undesirable precedents being set; that Government may well need to answer MP's questions about
how the proposals mentioned in the Beckett memorandum will work in practice; and that it need to be able
to respond to pressure from the Scottish Ministers and Parliament for similar answers, and notably about
the Bills in the present session.
These arguments will sound more convincing if they are backed by the
Cabinet Office rather than us. Indeed it SC?emsto me ,that the best way of overconring the likel~suspicionin
Whitehall more generally would be for the proposals to issue' from Cabinet Office .. '
But the bottom line is that if we do not achieve CO agreement to the proposals they will get nowhere.
And
.it does not appear that we will get that agreement if we proceed as we had intended.
Therefore I think that
the submission 'should go to the Sots with the recommendation that we discuss the proposals at official level
with other departments. The submission need not await the "Welsh" paper but the proposals put to
Whitehall better await that.
1
BY E-MAIL TO ALL
From: E C Davison
DD:LG2
5 March 1999
_~.
....,...
/[
PS/Mr McLeish
i
j
Copy to:
PS/Secretary of State
PS/Permanent Secretary
PS/DD
PS/HD
PS/AEFD
Solicitor
Director, InD
Mr Ewing, Constitution Group
Parliamentary Clerk
Special Advisers
PRIVATE
MEMBER'S
BILL: .JAMES CLAPPISON
MP
BREEDING
AND SALE OF DOGS (WELFARE)
BILL
Purpose
1. For Ministers to determine whether the above Private Member's
Bill should apply to
Scotland and to respond to Mr Howarth's
letter of 24 February to the President of the
Council seeking clearance that the Bill should not be blocked at Second Reading on
Friday 12 March.
Timing
2.
Urgent. A response is required by Tuesday 9 March.
(.
Background
~
3. The background to the Bill is explained in Mr Howarth's letter. The Bill, if enacted, will
improve the welfare of dogs by both imposing tighter controls on large dog breeding
establishments, but without imposing conditions on the hobby breeder, and controlling
the circumstances
in which such dogs can be sold.
The Bill is similar to a Private
Member's Bill introduced by Mike Hall MP last year which had Government support but
was blocked by the Opposition at Report Stage.
Its contents are consistent with the
publication New Labour, New Life for Animals.
Home Office report that there is strong
public support for the Bill, although it is not a subject on which we have received any
representations and we are not in a position to assess Scottish public opinion on it.
Scottish Parliament Considerations
4.
The subject matter of the Bill will be in a devolved area; and the main question for
Scottish Office Ministers is whether to allow GB legislation on this subject to go ahead at
this stage.
It is the kind of Bill which, in the days before the Scotland Act, Scottish
LNI0005.039
1.
Ministers would have supported almost automatically, since not to do so would have been
indefensible.
Devolution obviously changes all that; criticism is as likely to come for
letting legislation go through Westminster at a time when it could just as well have been
left for the Scottish Parliament to consider, as for missing an opportunity to do something
for animal welfare.
Bill Confents
5. If the Bill were to apply to Scotland we, like the Home Office, would have a few
reservations about it as currently drafted. In particular the Bill seeks to introduce a form
of registration/identification
for all dogs which are sold by breeding establishments to pet
shops.
We would wish to ensure that any such references in the Bill was not the first
steps in an effort by the sponsors to introduce some form of dog registration by the back
door.
We have made our concerns known at official level and at this stage do not
consider it is necessary
to reinforce tpese at Ministerial
level.
DETR are currently
undertaking
further research regarding the merits of introducing
some form of dog
registration or licensing scheme and are keeping us informed of developments.
We need
~ ..
~~.
to ensure that the Private Member's
Bill in no way restricts the outcome of these
deliberations although it will for the Scottish Parliament to determine whether any such
scheme is ultimately introduced north of the border. However this issue, and other minor
concerns which we have made Home_ Office. officiauware
of regarding the draft Bill,
can be addressed by the tabling of Government amendments at Committee should the Bill
obtain Second Reading on 12 March.
Recommendation
6. None of these concerns, even the devolution question, calls for the Bill to be blocked at
Second Reading. I would suggest that Mr McLeish might reply to that effect, but indicate
that the timing of the legislation, on a devolved subject, is such that the Government
shouldseek
to have it disapplied ftom Scotland.
I attach a draft in those terms.
If
however Ministers. areco~t~D,t!Q _lettl1~.BiP go. tl1r0ugh_as. a~9B !ll~asure, silence will be
taken as assent.
.
-.
- ---
/
~
•
E C DAVISON
5 March 1999
DD: LG2
Area 3-H99
Yictoria Quay
Exf47037
LNI0005.039
2.
Document Outline
