THE SCOTTISH OFFICE
Constitution Group
Victoria Quay
Edinburgh EH6 6QQ
. Telephone 0131-244
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Fax 0 131-244 ~>~
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David Brew Esq
Constitution Secretariat
Cabinet Office
Room 408b
70 Whitehall
LONDON
SWIA 2AS
23 February 1999
LEGISLATION
AT WESTMINSTER
ABOUT DEVOLVED
MATTERS
1.
We spoke briefly last week about our thinking about how flesh should be put on the
bones of the announcement last year that the Government expects a convention to operate that
Westminster will not normally legislate about devolved matters without the consent of the
Scottish Parliament.
2.
Some decisions are for the Scottish Minsters and Parliament, but others are for the UK.
Government.
Ian Walford and I think that 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 attach a draft paper which I have circulated within the Scottish Office. Our plan is to
put the questions in it to our Secretary of State and then circulate the paper on the DP net
either at Ministerial or official level seeking clearance for the proposals and for a low-key
announcement (presumably in a Parliamentary answer by the Secretary of State for Scotland)
after 6 May about how the UK. Government envisages the convention working.
4.
I should be very grateful for your comments
(by Monday
next week if at all
possible) on the paper and on the approach outlined in the previous paragraph.
In particular,
is there any issues here which we should seek to feed into the Procedure
Committee's
investigation of the procedural consequences of devolution?
5.
As you suggested, I have spoken to theW elsh Office and am copying this letter to
Steven Pomeroy.
Steven's view, if! understand it correctly, is that the convention will not be
particularly relevant to the Welsh Assembly because there are no devolved matters in Wales,
0223fl1.doc
@ Recycled
merely transferred functions.
Instead there is have a statutory requirement that the Secretary
of State should consult the Assembly about proposals for legislation.
6.
The Northern Irish situation is more similar to ours, but I want to hold off from
involving them until we have a more fully worked up set of proposals.
DAVID ROGERS
.
(
0223fll.doc
DRAFT
LEGISLATION AT WESTMINSTER ABOUT DEVOLVED MATTERS
Introduction
Lord Sewel announced to the Lords on 21 July 19981 that the Government "would expect a
convention to be established that Westminster would not normally 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 subjects unless it is clear that the proposal has the support
of the devolved body.concerned.
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, some decisions about the operation of the convention will be for them.
However, others require policy decisions by the UK Government.
Similar issues arise where UK Ministers will have powers to make subordinate legislation
about devolved matters.
Legislation introduced at Westminster after 6 May 1999
What precisely 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 form, 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
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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 formally before it is
tabled at Westminster.
The form 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 legislating. 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 ofthe bill. And if
the Scottish Ministers or Parliament express unhappiness with amendments proposed or made
to the bill they could of course make that clear for Westminster to take into account.
I HL Debates, VoI592,
coI 791, 21 J)JIy 1998
0223fll.doc
Officials of the Scottish Administration 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 from the UK Department and that the UK Department
would have the final say on what briefing went to the Minister.
Prvate legislation.
We expect private legislation which covers 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.
When should the convention
begin to operate?
Although Holyrood will not assume its
powers until I 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 as applying ITom 6
May onward.
There is already a public commitment
[Dr Wildgoose, when and by whom?J
that such consent would be sought for the bill to establish the Food Standards Agency.
Accountability
of UK Ministers to Westminster for 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 introduced 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 Westmipster on D-Day
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 I 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
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:
0223fll.doc
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 effect across the whole of the UK, 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;
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
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 that it should be possible for regulations to be
made on a UK-wide basis.
A similar range of issues arise for such secondary legislation as for Westminster 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.
Where an instrument 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 that they have agreed to such an order
being made.
Executive Secretariat
The Scottish Office
February 1999
0223f11.doc
Mr Grice
----....
/
Copy to:
PSI AEFD
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PS/ES
.тАвтАв..:....
--- -- ---. --'-- -
Mr Cameron
Mrs Munro
Mr Walford
Mr Ewing
Mr Lindsay
Mrs Macdonald
Mrs McAllan
FOOD STANDARDS BILL: DEBATE IN SCOTTISH PARLIAMENT
1.
As I explained in our recent telephone conversation,
the FS Bill may be introduced
at
Westminster
this Session - if Parliamentary
time becomes available.
The frime
Minister
has
indicated that he wants it ready for introduction as short notice - which suggests introduction is likely.
2.
Currently the Bill is out to consultation, with the consultation period ending on 24 March.
Current plans are to have the Bill ready for Second Reading by 7 June (ie a planned date only). Pre-
legislative scrutiny is being carried out by a special Ad Hoc Select Committee which aims to report by
mid-April.
Some loose ends remain to be tied up - some involving devolution - but they should be
within the above timescales.
3.
The odd feature of the Bill is that it sets up a UK Food Standards Agency and thereby covers,
in primary legislation for introduction at Westminster, a matter which is devolved ie food safety.
I
should indicate that the Secretary of State endorsed proceeding
on this basis (- at a meeting
on
9 December) on grounds that the approach would have to be agreed by the Scottish Parliament.
He
has now written to opposition party leaders on the issue, the main lines of argument being that a
Westminster Bill is the quickest way to ensure the setting up of the FSA and that it makes sense from
a practical standpoint, for policy in this area to be close co-ordinated on a UK basis (eg single UK
source of scientific advice etc). Hence, any opposition to this approach would inevitably lead to delay
in the setting up of separate Agency arrangements for Scotland - and it would also be sub-optimal in
policy terms.
4.
This leaves us now with the need to clear the approach through the Scottish Parliament - both
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acceptance of the policy of a UK Agency and of legislating at Westminster in this devolved area. Our
aim, given the above background and timing, is for this to be achieved by end May 1999. I would
therefore be grateful if you could schedule a debate in the Parliament within this time frame ie before
31 May.
5.
Finally, I should note that I have alerted Mr Walford to the above and he plans to include a
reference to these arrangements in the transition paper he is currently drafting.
J R WILD900SE
22 February 1999
AEFD Division A
Room 352
Pentland House
Ext 46159
AGA05602
"
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~------
From:
J R Wildgoose
AEFD Division A
22 February 1999
PSIMr Galbraith
Copy to:
PS/Secretary of State
PS/Lord Sewel
PS/Penn Sec
PS/AEFD
PS/DoH
DCMO
Mr Cameron
,
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Mrs Munro.
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MrW.aHOfd
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Mr Symington
Mrs Macdonald
Mr Whitton
Mr Elder
FOOD STANDARDS AGENCY: ANIMAL FEEDINGSTUFFS
Purpose
1.
To seek the Minister's
approval to amend Section 28 of the current draft of the Food
Standards Bill to extend to Scottish Ministers the order making powers in the section - relating to
regulation
of animals feedingstuffs,
their composition,
production
and treatment.
Currently the
version of the section, which has gone for consultation, only covers England and Wales.
Timing
2.
Urgent.
Subject to Ministerial agreement we will need to write to MAFF at official level to
notify of the change and then to seek re-drafting of the section through Parliamentary Counsel.
c
Background
3.
The draft of the FS Bill which has issued for consultation needs to be amended to account for
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certain points of detail.
Most of the amendments are of a technical- nature; some follow from the
Scotland Act. Two, however, are more significant - first extending Scottish Ministers' powers to act
on animal feedingstuffs
to bring these in line with the powers they currently have (and which will
transfer at devolution)
in the Food Safety Act 1990 and second, powers to v;ny the FSA levy in
Scotland.
This minute concerns the former; the latter issue will be the subject of separate advice. (A
meeting of MISC02 (officials)
is scheduled for Friday 26 February to discuss the levy issue;
I
understand that a MISC1 meeting is also being arranged for week commencing 1 March).
4.
The intention behind the order making powers on animal feedingstuffs
in Section 28 of the
draft Bill (copy attached - top copy only) is to "modernise" feeding stuffs control by relating it to the
better mechanisms
available under the Food Safety Act 1990 rather than Part IV of the Agriculture
Act 1970 which currently provides for regulation making powers on animal feedingstuffs.
There is
concern that the 1970 Act powers (which will transfer to Scottish Ministers under devolution) may not
be extensive enough to deal with the full range of issues on feedirrgstuffs that might arise in a food
safety context.
This is likely to be of significance in the future given the interest in GM feedingstuffs.
And of course BSE underlines the significance
of powers to control feedingstuffs
on food safety
ground~_ -
_. er, the current draft of the section empowers Ministers in England and Wales only to
71 ~)/
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AGA05702
1.
make an order replacing Part IV with parallel provisions to those in the draft Food Standards Bill
covering the Agency's functions.
5.
The reasoning behind Parliamentary Counsel's decision to restrict this section to England and
Wales only is that, as control of feeding stuffs is a devolved matter, it will be for the Scottish
Parliament to decide whether to pass primary legislation in this area to give Scottish Ministers new
powers, and is therefore outwith the scope of the FS Bill. In other words, there would be a breach of
the constitutional convention that Westminster does not pass legislation extending to Scotland in a
devolved area, without first seeking the agreement of the Scottish Parliament.
Consideration
6.
Theposition
on the constitutional convention is formally correct;
a Westminster Bill should
not be legislating in this devolved area without the agreement of the Parliament.
But the whole FS
Bill is essentially in the same position - a Bill which might be introduced at Westminster this session,
if Parliamentary time becomes available, in an area which is devolved.
And furth,er, we plan anyway
to consult the Parliament on the whole Bill- probably towards the end of May. Hence we can
a:t the
same time invite the Scottish Parliament's
views on extending the order making powers to Scottish
Ministers in the Bill.
7.
Apart from these formal and legal issues, it makes sense in policy terms to extend the powers
to Scotland.
As indicated, the Agriculture Act 1970 powers may have gaps on feedingstuffs issues in
relation to food safety - an undesirable position particularly given the high profile animal feed has
had in the food safety content in the recent past. Delaying acquisition of these powers until a suitable
primary legislative vehicle can be found in the Scottish Parliament also is undesirable against this
background.
8.
My advice therefore is that we should ask for the Bill to be amended so that the powers in
Section 28 of the Bill extend to Scottish Ministers - and that this point be specifically drawn to the
attention of the Scottish Parliament when the Bill is debated.
Recommendation
9.
Ministers are recommended to agree to extension of the powers in Section 28 of the draft FS
Bill to be exercisable by Scottish Ministers.
Subject to that agreement I will write to MAFF officials
with a request that redrafting be put in hand with Parliamentary Counsel.
r
J R WILDGOOSE
22 February 1999
AEFD Division A
Room 352
Pentland House
Ext 46159
AGA05702
2.
Document Outline
