Mr Affleck
Copy: Mr Walford
Mr Mo'ore
Mr Jamieson
Ms Hibbert--
Mr Rogers
Mr Burgess
IMMIGRATION
AND ASYLUM BILL
1.
Your minute of 23 February asked what procedures were in place should there be a
dispute over the Scottish Ministers 'withholding'
their agreement to UK Ministers
proposals, particularly in the context of the Immigration and AsylUII1Bill' provisions
which give the Home SecretarY powers to direct local authorities and to designate
reception zones ..
2.
We expect that the vast majority of differences between the Scottish Administration and
~
.:c' "~:'Ii.::
..
Whitehall will be worked out by negotiation at official level in much the same way that
we currently negotiate with Whitehall colleagues.
Although not legally binding, the
concordats currently being drafted by Departments will help to set out the practicalities of
working together.
3.
However if agreement cannot be reached at official level it would be. appropriate for this
type of matter to be discussed by the Joint Ministerial Committee. The JMC will consist
of representatives of the UK Government and the devolved administrations and one of its
main purposes will be to resolve disputes between the administrations.
4.
Westminster, of course, remains the sovereign Parliament and, as a last resort, could
legislate to remove the requirement on the Home Secretary to getting the agreement of the
Scottish Ministers.
5.
In the case of the Immigration and Asylum Bill I think that we should continue to press
for the Home Secretary to seek the agreezpent of the Scottish Ministers rather than just
".(.
consult them.
As you have pointed out the powers that the Bill gives to the Home
Secretary could have significant consequences on local authorities and their funding and
housing stock, all matters devolved to the Scottish Ministers. In these circumstances our
concern is not how disputes would be resolved but rather to ensure that the interests of the
Scottish Ministers are adequately catered for. It is unlikely that the Scottish Ministers'.
would unreasonably withhold their consent and, if they did so, the Home Office can be
reassured that there are a pumber of options to resolving any differences.
6.
I hope this is helpful.,
Happy to discuss and, of COl,lI"se,
to clear ~e terms of any
correspondence.
JOANNE MCDOUGALL
Executive Secretariat - Functions
G-H81
VQ
Ext 45540
25 February 1999
/,~
Dr Wildgoose, AEFD-A
't. (/1-/l)
Copy to:
PS/AEFD
Mr R Gordon, ES
~
Mr T A Cameron
MiGrice,CGnn
1~ -
n
.--
-
••
~-
MrsNSM~HD
Mr Walf~S
.
Mr S G Lindsay
Mrs M M Macdonald
Mrs M McAllan
Mr Campbell, ES
FOOD STANDARDS BILL: DEBATE ON SCOTTISH PARLIAMENT
I
1.
Thank you for copying to me your minute of 22 February to Mr Grice asking him to
schedule a debate in the Scottish Parliament on the proposed Food Standards Bill before
31 May.
2.
I think your timetable is unrealistic. The current plans are that Scottish Ministers will
be appointed in the course of week beginnitig 17 May with the first· meeting of the Scottish
Executive scheduled ·for 20 May. You are, therefore, giving yourself very little 'time to take
the views of the relevant Scottish Minister and to brief him or her on the topic before an
appearance in what might be a key debate in the early day of the Scottish Parliament.
3.
There is also the danger that you may upset the Parliamentary authorities who will in
that week also be giving consideration to the structure of their committees and might prefer to
have a discussion on the Food Standards Bill taken in the relevant committee.
4.
I would, therefore, suggest that the earliest you should aim to have the debate is in .
(
week beginning 31 May.
This would ensure that the Scottish Parliament's
view on the
proposals were known before the Second Reading- Debate at Westminster.
e
5.
I presume that the text of the Bill will have been published well before this so that the
Scottish Parliament is not being asked to agree blind to a Bill which had yet to be introduced
and printed at Westminster.
JOHN EWING
Constitution GroupIES
I-F98
Victoria Quay
if 4 0357
24 February 1999
@
lhi04002.doc
13/01/99
It;
I
Frorii:- DaVid Rogers-
ES-Functions
23 February 1999
Copy to:
Mr Gordon
Mr Ewing
Mr Ferguson, LD
Mr Grice
Mr Jamieson
Mr Kelly
Dr Wildgoose, AEFD
Mr Wallace
Ms Hibbert
,
I
LEGISLATION
AT WESTMINSTER
ABOUT DEVOLVED
MATTERS
(\
1.
Your minute of 19 November recorded some conclusions ofCG and Liaison Division
about how the convention should operate that Westminster will not normally legislate about
devolved matters without the consent of the Scottish Parliament.
The points about what is
likely to happen if any of this session's bills are still before Westminster on D-Day have been
disseminated and reflected in advice to Ministers.
But we have not yet sought agreement
from Ministers or Whitehall about how the convention should work more generally.
2.
Some decisions are for the Scottish Minsters and Parliament, but others are for the
UK Government.
AB we have discussed, it would be useful if the UK Government's
decisions could be made soon so that they can be reflected in planning for the transition
period and guidance for next session's legislation.
In particular, we need to establish the
approach which should be taken in seeking the Parliament's consent for the Food Standards
Agency bill, which may be introduced in during the transition.
3.
I therefore attach a draft submission which suggests that the Secretary of State write
to DP seeking clearance for a set of proposals.
However an alternative would be to seek his
c
clearance to circulate the proposals at official level ..
.-\( 4. Could Iaskforco~ents byclose onMonda.!" 29February please2-.·There area
..
-- number of queries annotated on the draft, som~'of'which
are addressed to particular copy
recipients.
5.
As you will see, I have assumed that we want to establish that the convention will
apply to subordinate .legislation, notably that to implement EC obligations, and to private
legislation as well as to public bills.
Cabinet Office, Wales and Northern
Ireland
6.
As\Ve agreed, I shall send the draft proposals (but not the covering submisson) to
David Brew for his comments,emphasising
that it merely represents our initial thoughts.
We discussed the issues very briefly with him last Friday.
He volunteered the unexpecte4
views that he would expect the Secretary of State for Scotland to be the prime conduit for
liaison with the Scottish Ministers about proposals for legislation, and that he thought that
0217wles.doc
/"
.. --- there could well be Third Reading.;.styledebates in the Scottish Parliament once the end-ofthe-- ....- -
Westminster procedure is being neared.
I have not included these points in the paper
because the former seems to sit uneasily with the idea that most of our collaboration should
occur bilaterally with Whitehall and because the latter would, I think, be an unnecessary
source of tension between Westminster and Holyrood.
5.
David Brew also reckoned that Wales would be the driver on these issues.
His
reasoning appeared to be that because··the Assembly will not have competence to make
primary legislation the need to secure its consent for Westminster bills will arise far more
frequently. Mrs Beckett's memorandum to the procedure committee did indeed say that the
convention should apply to the "devolved bodies". However, Steven Pomeroy in the Welsh
Office tells me that they are firmly of the view that it does not apply to the Assembly because
there are no devolved matters in Wales, merely transferred functions. Instead they have a
statutory rquirement that the Secretary of State should consult the Assembly about proposals
for legisla,tion. It seems to me, therefore, that the Welsh situation is sufficiently different to
ours for us not to worry too much about consistency. My letter to David Brew makes this
point and is being copied to Mr Pomeroy.
6.
The Northern Irish situation is more similar to ours, but given their sensitivity about
the parallels we drew with pre-1973 Stormont I have held off involving them until we have a
more fully worked up set of proposals.
DAVID ROGERS
ES-Functions
{/
"'-.
G-H93
..
e
Victoria Quay
Ext 45534
23 February 1999
0217wles.doc
....... DRAFT
.
-----· ..·From:- Ian Walford-
- -
-.. _..u
...•
_
••.•
__
._
-
•••
Executive Secretariat
February 1999
PS/Secretary of State
Copy to:
PSIMr McLeish
PS/Lord Sewei ...
PS/Perm Sec
PS/Departments
Directo!, SCA
Mr Gordon, ES
Solicitor
Mr Jamieson, ES-Sols
1V1r 'IIaltalJ, ~S-
Mr Kelly, ES
Mr Grice, ES
Mr Ferguson, ES
Dr Wildgoose, AEFD
Mr Ewing, ES
Mr Rogers, ES
Mr Elder .
Mr Whitton
MsJohnson
LEGISLATION AT WESTMINSTER ABOUT DEVOLVED MATTERS
Purpose
1.
To seek a steer from Ministers about how the convention
should' work that the
Westminster
Parliament
will not normally legislate about devolved matters without
the
( ,
.consent of the Scottish Parliament, [and to invite the Secretary of State to write to the Lord
"-e
Chancellor with proposals].
We would like to be able to produce guidance on these matters?
~
the transition period after 6 May and for next session's legislative programme.
In particular,
-.
-
-
we need to establish the approach for seeking the Scottish Parliament's
consent for the Food
Standards Agency bill, which may be introduced in Mayor June.
Timing
2.
Routine.
Background.
3.
Nothing in the Scotland Act prevents Westminster from legislating about devolved
matters. However, Lord Sewel announced to the Lords on 21 July 1998 that the Government
0217wles.doc
. - .--.---.-- .."woUfd-expec(aconventioii-to-be
-esfablIsned -that WesfiriiIisferwo1.lld·n01jioririaIIY ·legisla.te-·--
.
with regard to devolved matters in Scotland without the consent of the Scottish Parliament".
This annoncement was rAf1ecten lrJ M-n: Rp.ckett'~ evidence in November to the Commons
Procedure Committee's inquiry into the procedural consequences of devolution.
-
-.--- --_.~-----~~
.... __ .,.- .... ~--- - ~--'----- ._---_._-~------_ .._._-------------------------
4.
In practice, bills covering devolved matters in Scotland will normally be promoted at
Westminster only when UK and Scottish Ministers agree that a partic1.llar matter should be
covered by a UK or GB-wide Act. This might be the case, for example, where it is agreed
that there should be a common regime of enforcement or regulation:
How will the convention work?
5.
As it will fall to the Scottish Ministers to seek the consent of the Scottish Parliament,
some decisions about the operation of the convention will be for them.
However, others
require decisions by the UK Government, as follows:
5.1
Should the consent be (a) to the detail of legislation, or (b) merely to the
principle of the proposed legislation and the principle that Westminster should
legislate on the matter? It will be for the Scottish Ministers to decide on the form of
the proposal put to the Scottish Parliament, but we think tIurt we should plan on fue
/
basis of (b). Sched1.lling opportunities for the Parliament to debate amendments to a
c
bill, or to its final form, woUld delay proceedings at Westminster and co1.lld be a
e
...
source of tension between the 2 legislatures.
Holyrood will, after all, be able to
legislate to amend the Westminster Act if it sees fit. However, it would be incumbent
~n the UK Government to liaise closely with the Scottish Ministers during the passage
of the bill.
And if the Scottish Ministers or Parliament express unhappiness
with
. developments
they co1.lld of course make that clear for Westminster to take into
account.
5.2
What should be the role of the Scottish Ministers and. their officials in the
promotion of the legislation at Westminster? Obviously it sho1.lld be for a UK
Government Minister to lead in explaining the legislation to Parliament, but it would
be helpful if the principle could be established within Government that it would be
0217wles.doc
n_-acceptable for Scottish-.AdmiDisttatioIfofliCi81slo
Demembersora'Bilneamoriefuig-
,
_pun"
-
the UK Ministers.
-------------
~~
n
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,
_
5.3
What should be the accountability of UK Ministers to Westminster for bills
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Government sought to establish the principle that UK Ministers will not generally
answer Parliamentary questions about matters which are the responsibility of the
Scottish Ministers. An exception to this general rule will have to be made for a UK
Minister piloting a Bill through Parliament which covers devolved matters.
We
propose that the Minister concerned should make clear in his initial statement to
Parliament that while he will be accountable to them for the passage of the legisJation
he would be keeping in close touch with the Scottish Ministers and would not
generally be accountable for the relevant devolved matters.
5.4
When should the conve1J.tionbegin to operate?
Although Holyrood will not
assume its powers until 1 July the UK Government is likely to find it difficult to
defend any decision after 6 May to introduce bills at Westminster covering devolved
matters unless it is clear that the proposal has the support of the Scottish Parliament.
We consider, therefore, that we ought to regard the convention as applying from 6
May onward. There is already a public commitment
[Dr Wildgoose, when and by
whom?) that such consent would be sought for the bill to establish the Food Standards
Agency.
(--
5.5
Should consent be sought for Bills introduced before the establishment
of the
Scottish Parliament which may still be before Westminster on D-Day.
Most of this
session's bills dealing with devolved matters are expected to have received Royal
Assent before 1 July.
However, it is possible that some may still be before
Westminster. One could make a case that at that point the Scottish Parliament should
be asked to consent to the legislative process c~ntinuing. However, it is unlikely 11lat
Westminster would take kindly to be stopped in its tracks at that stage. Rather, we
propose that the Government should not seek the Parliament's consent for such Bills.
The Scottish Parliament will, of course, be able to repeal or amend the legislation in
due c'ourse. We 'expect that the Scottish Ministers would wish to m3ke a statement to
the Scottish Parliament during the transition period explaining the position. Should
0217wles.doc
-the Scottishparliam.enlof-llie-Scotfisli-MfuisferiffaiKeconcems;6rc6ilise;
theUK--------------
---
__
m
-------
-
Government would no doubt wish to take them into account.
5.6
Should the convention apply to private legislation?
Mrs. Beckett's
------------
memorandum describ~d tlle_conyentionas apPlying to public bills but Lora SeweI's--------
_0
__
-
_._,
__
••
.~.
••
"
._
announcement was not restricted in that way.
We expect private legislation which
deals with reserved as well as devolved matters to continue to be made at
Westminster.
It would seem appropriate. for the UK Minister with policy
responsibility to consult the Scottish Ministers and for them to seek the consent of the
Scottish Parliament.
5.7
Should the convention apply to subordinate legislation? Under the Scotland
Act, UK Ministers will have certain powers to make subordinate legislation about
matters within the competence of the Scottish Parliament, most notably to implement
BC legislation. This will normally be a matter for agreement between the Scottish
Ministers and the UK Government. Where the instrument concerned is subject to
affirmative procedure at Westminster it would seem appropriate for the UK
Government to indicate' to Parliament whether or not the Scottish Parliament's
consent has been given~ Again, it would be for the Scottish Ministers to seek such
consent.
[Is this practicable?
Would there be timing difficulties?
Perhaps
"normal" gets around those.) Where an instrument is subject to negative procedure,
then it would seem sufficient for the Scottish Ministers to inform the Scottish
(- ,Parliamentthattheyhave,agreedtosuchanorderbeingmade.
Announcement
6.
It would seem appropriate for there to be a statement to Parliament explaining the the
Government's intended approach. This would probably best take the form of a low-key
anpouncement by the Secretary of State for Scotland in an arranged PQ after 6 May.
[Mr
Ewing, could/should some of this befed somehow into the procedure committee?}
Draft Letter
0217wles.doc
7.--
I attach-a- dta1:lTefter--tcdlieLord- Cliance116:rwhic1i~-c6vers
-apapef-settIDgoutthe----
.---
~
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proposals above in detail and seeks clearance from DP members.
[A.1tern.tiwJy 'ItHIltldwply
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Recom-mendafion ---.--.------------------.-~-----
•
8.
I invite the Secretary of State to agree that:
8.1
we should plan on the basis that the Scottish Parliament will be invited to
consent to the principle of Westminster legislating about a devolved matter, and to the
principle of the legislation concerned, but not to the detail of the bill;
,
8.2
we should aim to establish the principle that is acceptable for Scottish
Administration officials to be members of Bill teams briefing UK Ministers;
8.3
the UK Minister who introduces the legislation should make clear that he is
answerable for it, but not for the devolved matters more generally;
8.4
the convention should begin to operate as soon as the Scottish Parliament is
established in.May but that the Parliament's consent should not be sought for any Bill
which has already been introduced at Westminster; and
8.5
the convention should apply not only to public bills but also to private"
legislation and subordinate legislation which is subject to aftinnative procedure; and
8.6
these proposals should be announced to Parliament after 6 May;
[and to send the attached letter to the Lord Chancellor setting out the proposals. ] / ~
'Agree teat ~!.'eshe1:1:ld e:irettlAlw the aUm.:hwd !,10!,UScJb 4t u[£Giall~uPlon the DP netl~
IAN WALFORD
Executive Secretariat
Room G-H93
VQ
• Ext 45532
0217wles.doc
0217wles.doc
·.- -- DRAFT
The Rt Hon Lord Irvine ofLairg QC
_____ LQ!(LChanc~llQJ'~])~;gtm~~~._~
~ __ .__
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.
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House of Lords
--------LQNDQNr--.------------
~~
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SWIA OPW
LEGISLATION
AT WESTMINSTER
ABOUT DEVOLVED
MATTERS
We announced to Parliament during the passage of the Scotland Bill that "we would expect a
I
convention to be established that Westminster would not normally legislate with regard to
Qi•.
devolved matters in Scotland without the consent of the Scottish Parliament."
I am writing to seek colleagues'
approval for some proposals about how the convention
should operate.
They are set out in the attached annex;
We need to reach a view on these
issues now in order to establish the approaches for the Food Standards Agency bill if that is
.
introduced this session, and for any bills introduced before the establishment of the Scottish
Parliament which are still before Westminster when Holyrood takes up its powers on 1 July.
I suggest that in due course, before the Scottish Parliament takes up its powers, there should a
statement to Parliament about how we envisage the convention operating._ In the meantime,
C
the proposals could be reflected where necessary in guidance for officials.
- Itwould behelpful ifcolleagues couldindicatebyI]whether theyarecontent withthese
proposals.
~
I ~
copying this letter to the Prime Minister, members of DP, Sir ~
Wilson and First
Parliamentary Counsel.
DONALD DEWAR
0217wles.doc
DRAFT
ANNEX-
...
------------------~--_._--------------_._-~-------_._--~----~~--_._._------_._----._----~
Introduction,
1.
Lord Sewel announced to the Lords on 21 July 19981 that the Government "would
expect a convention to be established that Westminster would. not nonnally legislate with
regard to devolved matters in Scotland without the consent of the Scottish Parliament".
In
her memorandum
to the House· of Commons
Procedure
Committee's
inquiry
into the
procedural consequences of devolution in November, the President of the Council indicated
that the Government expect the convention to apply also to Wales and Northern Ireland and
to be adopted for all public bills, and that it is likely to oppose any private Member's bill
which seeks to alter the law on devolved subje'?ts unless it is clear that the proposal has the·
support of the devolved body concerned.
2.
It will be for the administrations
in Whitehall and Edinburgh to work together to
operate this convention.
As it will fall to the Scottish Ministers to seek the consent of the
Scottish Parliament, sOJ11.e·
decisions about the operation of the convention will be for them.
However, others require policy decisions by the UK Government.
3.
Similar issues arise where UK Ministers will have powers to make subordinate
legislation about devolved matters.
Legislation
introduced
at Westminster
after 6 May 1999
4.
Whatprecisely should the Scottish Parliament be asked to consent to? An approach
which would maximise Holyrood's input would be to seek its consent both to the introduction
of a bill and to its final fonn, and for there to be scheduled opportunities for it to debate
amendments which have been made to it or even to propose amendments.
But we think that
such an approach
would' be impracticable.
It would
certainly
delay proceedings
at
Westminster and could be a source of tension between the 2 legislatures.
And it might be
seen as inappropriate
for the Scottish Parliament to scrutinise a bill fonnally before it is
tabled at Westminster.
5.
The fonn of the proposal put to Holyrood
would be a matter for the Scottish
Ministers.
We propose, however, that what we should aim to see sought is consent to the
principle of Westminster legislating on a particular matter within the Scottish Parliament's
legislative competence, and for the principle of the proposed legislation.
This should be
obtained before a bill is introduced at Westminster.
Thereafter Westminster should be left to
get on with leiislating.
The Scottish Parliament will, after all, have the competence to amend
the legislation once it is on the statute book.
However, it would be incumbent on the UK.
Government to liaise closely with the Scottish Ministers during the passage of the bill. And
if the Scottish Ministers or Parliament express unhappiness with amendment,s proposed or
made to the bill they could of course make that clear for Westminster to take into account. .
.
.
1 HL Debates,
Vol 592, co1791, 21 July 1998
0217wles.doc
. 6.
Officials of the Scottish·AdririnistiatioIl-would be able to brief UK Ministers .leading ...
on Bills containing Scottish provisions, but on the understanding that they were part of a bill
team which would be led by an official :lTomthe UK Department and that the UK Department
would have the .final say on what briefing went to the Minister.
---·7-;-- -Prvoie-Iegislation-. W8-expect-priv.ate-legislatioR-which-covers-reserved ..as well- as·
devolved matters to continue to be made at.Westminster. It would see~ appropriate for the
UK Minister with policy reSponsibilityto consult the Scottish Ministers and for them to seek
the consent of the Scottish Parliament.
8.
When should the convention begin to operate? Although Holyrood will not assume
its powers until 1 July the UK Government is likely to find it difficult to defend any decision
after the Scottish election on 6 May to introduce bills at Westminster covering devolved
matters unless it is clear that the proposal has the support of the Scottish Parliament. We
consider, therefore, that the Government ought to regard the convention
B$ applying from ~ .
May onward.
There is already a public commitment
[Dr Wildgoose, when and by whom?)
that such consent would be sought for the bill to establish the Food Standards Agency.
9.
Accountability of UK Ministers to Westminsterfor devolved matters. In its evidence
to the Procedure Committee, the Government sought to establish the principle that UK
Ministers will not generally in future answer Parliamentary questions about matters which are
the responsibility of the Scottish Ministers. An exception to this general rule will have to be
made for a UK Minister piloting a Bill through Parliament which covers devolved matters.
{ The lead UK Minister on a Bill which contains devolved Scottish provisions would need. to
make it clear in a statement to Parliament when the Bill is introduced (or at Second Reading)
.that the provisions are being intfoduced with the consent of the Scottish Parliament, that he
would be 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 be generally accountable for the relevant devolved matter.
.
.
Bills introduced
before the establishment of the Scottish Parliament
which are still
before Westminster on D-Day
10.
A number of Bills containing devolved Scottish provisions are· to be considered at
Westminster this session.
Most are expected to have received Royal Assent before 1 July.
But it is possible that some may still be before Westminster on D-Day.
The incoming
Scottish Ministers will probably wish to .make a statement before then to the Scottish
Parliament explaining the position, stressing that the Parliament would be.free to amend that
legislation in the future if it wished to do so. There would be little point at that stage in
formally seeking the Parliament's consent for such legislation given that it should by then
have virtually completed its passage.
However, should the Scottish Parliament or the
Scottish Ministers raise concerns at that stage, the UK Government would no doubt wish to
take them into account.
.
Secondary legislation
11.
Under the Scotland'Act, UK Ministers will have certain powers to make subordinate .
legislation about matters within the competence of the Scottish Parliament, as follows:
0217wles.doc
11.1
under Section 57 it will continue to be possible for a Minister of the Crown to
exercise functions, such as to make regulations under Section 2(2) of the European
Communities Act 1972, for the purpose of implementing an EC obligation as respects
a devolved matter in or as regards Scotland.
This provision was included in
recognition of the possibility that there may be circumstances where it is convenient '
and sensible for EC obligations to be implemented through a-single set of regulations __
having e:ffe~tacross the whole of the~
,rather than having separate regulations for
Scotland. This will be a matter for agreement between the Scottish Ministers and the
UK Government. It also enables a Minister of the Crown to rectify a breach of
Community law which may have been committed by the Scottish Ministers;
11.2
in connection with private legislation the Secretary of State will retain the
power to make provisional orders under the Private Legislation Procedure (Scotland)
Act 1936 which partly cover devolved matters; and
,
I
11.3
under Sections 56 and 108 it is possible for a Minister of the Crown to be
given further powers to make subordinate legislation about devolved matters. This
may be done, for example, where it is agreed thatit should be possible for regulations
to be made on a UK-wide basis.
12.
A similar range of issues arise for such secondary legislation as for Wesminster bills.
Where the instrument concerned is subject to affirmative procedure at Westminster it would
seem appropriate for the UK Government to indicate to Parliament' whether, or not the
Scottish Parliament's consent has been given. Again, it would be for the Scottish Ministers to
'seek such consent.
{Mr Wallace do you envisage that such consent would be sought?
Would it be practicable?} Where an PIstrument is subject ,to negative procedure at,
Westminster, then it would seem inappropriate to seek the Scottish Parliament's prior consent.
It would be for the Scottish Ministers to inform the Scottish Parliament th~t they have agreed
to such an order being made.
[The SP or the SMs could after all amend the order, but I
don't think that we should rub Whitehall's nose in that}
Executive Secretariat
The Scottish Office
February 1999
0217wles.doc
Document Outline
