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From:
Ian Walford
ES Cabinet Secretariat
May 1999
1. Mr McCabe
2. First Minister
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Director, SCA
Solicitor
[Mr Gordon, OSSS]
Mr Jamieson
Mr Ewing
Dr Wildgoose
Director, InD
Mr Rogers
[Special Advisers]
LEGISLATION AT WESTMINSTER ABOUT DEVOLVED MATTERS
Purpose
1.
To recommend that the First Minister should make a statement to the Scottish
Parliament to explain the convention which is expected to be established that Westminster
will not nonnally legislative with regard to devolved matters in Scotland without the consent
of the Scottish Parliament, and position of this session's Bills making provision about
devolved matters which may still before Westminster on D-Day.
Timing
2.
Routine, but the statement should ideally be made before the Scottish Parliament is ,
asked to consent to the Food Standards Agency Bill. It would therefore be helpful to know if
Ministers are content with the proposals in this minute by [ ].
Background
3.
Nothing in the Scotland Act prevents the Westminster Parliament from legislating
abou~devolved matters. However, Lord Sewel announced to the Lords on 21 July 1998 that
the Government ''would expect a convention to be established that Westminster would not
nonnally legislate with regard to devolved matters in -Scotlandwithout the consent of the
Scottish Parliament",
This announcement was reflected in Mrs Beckett's evidence in
November to the Commons Procedure (~qwx:mttee'sinquiry mto the proceduIal consequence~...
of devolution. The Committee's report waspublished on 24 Mar and says that [ ].
,.
4.
In practice, we would expect that a Bill covering devolved matters in Scotland would
normally be promoted by the UK Government only when UK and Scottish Ministers agree
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V4wesl.doc
I
that a particular matter should be covered by a UK.or GB-wide Act. This might be the case,
for example, where it is agreed there should be a common regime of enforcement or
regulation, or where (as in the case of the FSA) it is proposed that a new cross-border public
authority should be established.
5.
The convention is likely to be first put into practice for the FSA Bill if it is published
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by tlIeJJI<,_Govenunentto se~k the Scottish ...
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6.
More generally, the precise manner in which the convention will operate has yet to be
established~ Some aspects will require decisions by the UK government about how it will
manage business at Westminster. Other decisions will be for the Scottish Ministers, for
example about the form of a proposal which is put to the Scottish Parliament. We think that a
practicable approach would be for consent to be sought to the principle of Westminster
)
legislating, and for the scope and nature of the proposed legislation, but that once consent has
been given, Westminster should be left to get on with legislating. We think that it would be
impracticable, and a potential source of tension between the two legislatures, for the Scottish
Parliament to be given formal opportunities to debate or even propose amendments to a Bill
once it is before Westminster. 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 of the Scottish Parliament express unhappiness with
amendments proposed then it would be for the UK Government and Westminster to take that
into account.
Bills currently before Westminster
7.
A number of Bills which make provision about matters which will be within the
legislative competence to the Scottish Parliament are likely still to be before Westminster on
D-Day. They are listed in attachment.
[It is expected that Scottish Office -Ministers will
• consulttheappropriateScottishMinistersaboutthehandlingoftheremainingstagesofthese
Bills.]
One could make a case that the Scottish Parliament should be asked formally to
consent to the legislative process continuing for these Bills. However, there would seems
little point in this as the Bills are at advanced stages and the Scottish Parliament will be able
to repeal or amend them in due course should it see fit.
8.
We recommend that the First Minister should make a statement to the Scottish
Parliament explaining the position with regard to these Bills early in June in advance of the
proposed debate on the FSA Bill. A draft statement is attached. It takes the form of the
answer to an arranged SPQ. Should MSPs wish to debate the ~tatement [separately trom the
FSA Bill], we would advise conceding a short debate.
Presentation
':"':-.;';'
9.
The message that it is expected that Westminster will not normally legislate about
devolved matters except with the consent of the Scottish Parliament is probably best put
across to the media in the context of publicity for the FSA Bill. On that basis, the arranged
SPQ does not appear to merit a separate press release.
0524wes1.doc
2
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10.
InD would, however, with briefing to hold against enquiries based on the following:
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11.
I recommend
that,- [subject to the views of Mr McCabe
and the Deputy
First
Minister], the First Minister should agree to make a statement to the Scottish Parliament early
in June (a) explaining that it is expected that a convention will be established at Westminster
that the UK Parliament
will not normally
legislate about devolved matters
in Scotland
without the consent of the Scottish Parliament, and (b) informing the-Parliament about those -
Bills in this category which may still,'be before Westminster on D-Day.
IAN WALFORD
ES Cabinet Secretariat
\
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0524wes1.doc
3
ANNEX A
WESTMINSTER LEGISLATION ABOUT DEVOLVED MATTERS.
This paper lists those Bills making provision about matters which will be within the
legislative competence of the Scottish Parliament which may still be before Westminster on
D-Day.
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contentious Scottish legal aid provisions.
These enable the financial eligibility and
contributions tests to be disapplied for assistance by way of representation in respect of
certain proceedings (e.g. mental health proceedings) or for advice and assistance for persons
who are in receipt of disability working allowance. The Bill is currently at Committee stage
.in the Commons having started in the Lords. It unlikely is to receive Royal Assent before D-
day.
Adoption (Inter-country Aspects) Bill. This Private Member's Bill will introduce a legal
framework for inter-country adoption. The Bill is about to enter Committee stage in the
Commons. Royal Assent unlikely to be before 1 July.
Breeding and Sale of Dogs (Welfare) Bill.
This Private Member's Bill is intended to
improve the welfare of dogs by imposing tighter controls on large dog breeding
establishments. Its Commons Report stage is on 7 May. It is uncertain whether it will
receive Royal Assent by 1 July.
Financial Services & Markets Bill. This Bill is largely concerned with reserved matters but
it includes some minor provision in relation to devolved matters in the area of insolvency in
order to allow the proposed Financial Service Authority to petition directly for the insolvency
of an individual who carries out financial services business. The Bill is currently being
drafted and it is hoped that is will be introduced during June.
Food Standards Agency Bill. To establish the UK Foods Standard Agency. This may be
• publishedinJuneifthereisalegislativeslotthissession. Thereisapubliccommitmentto
seek the consent of the Scottish Parliament to this Bill, which would require a debate during
the transition period before Second Reading at Westminster.
Fur Farming (prohibition) Bill. This Private Member's Bill awaits its Report stage in the
Commons. It is uncertain whether it will receive Royal Assent by 1 July.
Health Bill. Amongst other things this abolishes GP fund~holding, changes the financial
arrangements for NHS Trusts and imposes a duty of quality on the NHS in Scotland. It is
currently at Committee stage in the Commons having been introduced in the Lords. It may
complete its passage by 1 July, but its Scottish·provisions would not be commenced until
after that and the powers to do so will devolve to the Scottish Ministers.
Immigration and Asylum Bill. This Bill includes provision a~out housing and marriages. It
is due to go to Committee shortly. It is uncertain whether it will receive Royal Assent by 1
July.
0524wes1.doc
ANNEX A
Leasehold Casualties (Scotland) Bill. This Private Peer's handout Bill includes provision in
relation to devolved matters of land tenure to abolish leasehold casualties,
which are a
payment additional to rent, which may be payable to a landlord by a tenant if a lease so
stipulates.
The Bill has yet to be introduced, and there is now considerable
doubt as to
whether it will proceed at Westminster ..
Mental Health (Amendment)
(Scotland) Bill.
11risis a short Private Member's
Handout
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the hospital. The Bill awaits its Committee stage in the Commons.
It is uncertain whether it
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will receive Royal Assent by 1July.
Motor Cycle and Pedal Cycle Parking
Bill. This Private Peer's Bill includes provision to
pennit the provision of stands and racks for motor cycles as well as for pedal cycles and to
pennit the provision of devices for securing motor cycles or pedal cycles.
The Bill has had
its second reading in the Commons and is due to be debated in the Lords on 12 May. It is
uncertain whether it will receive Royal Assent by 1 July.
Scottish
Enterprise
Bill.
This Bill makes provision
to increase
the limit of central
government funding which SE can receive from £3bn to £4bn.
It should receive Royal
Assent by the end of May.
Water Industry
Bill •. This Bill includes provision about the regulation of the Scottish water
industry.
It winds up the present Customers Council and establishes the Water Industry
Commissioner for Scotland.
It is currently in the Lords and if unamended will not have to
return to the Commons. A summer Royal Assent date is possible.
Welfare Reform and Pensions Bill. This Bill is largely concerned with reserved matters but
it includes provision in relation to devolved matters in the area of Scottish family law in order
to allow sharing of pensions on divorce.
In the reserved area of insolvency it also provides
for tax-approved personal pensions to be protected on bankruptcy.
The Bill is currently
nearing its Report stage in the Commons and it has yet to go to the Lords.
It unlikely is to
receive Royal Assent before D-day.
Youth Justice
and Criminal
Evidence
Bill. This Bill includes provision
in relation to
devolved matters in the area of criminal evidence and insolvency, for example to restrict the
use by prosecutors of answers and statements given under compulsion.
It was introduced in
the Lords and is due to go to Commons Committee in June. It unlikely is to receive Royal
Assent before D-day.
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THE SCOTTISH OFFICE
Executive Secretariat
St. Andrew's
House
Regent Road
Edinburgh EH 1 3DG
. Andrew Kennon Esq
Telephone 0 13 1-244
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J y. .,
Fax 0131-2440370
Cabinet Office
70 Whitehall
LONDON
SWIA 2AS
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27May1999
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LEGISLATION AT WESTMINSTER ABOUT DEVOLVED MATTERS
cu41 ( ~
7.7 J
·1..
Robert Gordon wrote to' John Elvidge on 12 March setting out our thinking about how
to give effect to the convention that Westminster will not normally legislate about devolved
matters in Scotland without the consent of the Scottish Parliament.
..
2.
Amongst other things, the paper which Robert enclosed suggested that there would be
little point in inviting the. Scottish Parliament to consent to the continuation of the passage of
those Bills which were already under cQnsideration at Wes~ter
before the establishment
-
of the Scottish Parliament.
Instead, we thought. that there should be a statement by the
Scottish Ministers to inform the Scottish Parliament about such Bills. I now attach a draft of
the statement; which takes the form of a written answer to an arranged Scottish Parliamentary
Question:
Our plan is that this should be made early next month before the Scottish
Parliament is asked to consent to the Food Standards Agency Bill .
. )
3.
We will alert the other departments concerned to our plans once they are firmer. In
the meantime it would be very helpful if you could let me have any comments upon the draft
statement by noon on Wednesday 2 June.
"
4.
I am copying this letter to David Brew (Cabinet Office).
DAVID ROGERS
()
SAS50601.059
'"
INVESTOR
IN P80fIUI
· DRAFT - 27/05/99
{JUNE}
WRITTEN
SCOTTISH PARLIAMENT
«Name»: To ask the Scottish Executive, if it will make a statement about legislation by the
United Kingdom Parliament about matters within the legislative competence of the
Scottish Parliament. (<<Number»)
MR DONALD DEWAR:
There are a number.of Bills currently before the United Kingdom Parliament
which make provision about matters which, from 1 July, will be within the legislative
competence of the Scottish Parliament. It is po.ssible that some of these will still be
under consideration at Westminster on 1 July, albeit at advanced stages of their
passage.
The table lists the Bills concerned. The Scottish Ministers are being
consulted by the Scottish Office about the handling of the remaining stages of this
legislation. It will be open to the Scottish Parliament to amend or repeals these Bill,
once they are enacted, so far as they makes provision within its legislative
competence.
Following devolution, the Westminster Parliament will retain its competence
to legislate about any matter, including matters within the legislative competence of
I
the Scottish Parliament. However, Lord Sewel announce to the House of Lords on 21
July 1998 that the United Kingdom Government expects a convention to be
established that Westminster would not normally legislate with regard to devolved
--------'
--m~,atterS:_in_Scotla.nd_wit:h.out.onsentof the ScottishJ>arliament. The Procedure
--,
-_.'::,':-'::::--::;,=,~ Corrnni'ttee:-ci-r~llie=Heuse
ofGdmriionslias~ iiiwcale'nits support for this approach in its
------~--
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-------------
--------- -- --- --
report published on 24 May:
Examples of the circumstances where it might be appropriate for a
Westminster Act to make provision about devolved matters in Scotland might include
those where it is agreed that there should be a common UK or GB regime of
0527kenl.doc
.' DRAFT - 27/05/99
enforcement or regulation, or where it is proposed that a new public authority should
be established with cross-border responsibilities. It would be for the United Kingdom
Government and the Scottish Ministers to agree about such proposals and for the
Scottish Execu~ve to seek the consent of the Scottish Parliament.
~
Access to Justice Bill. This Bill deals primarily with England & Wales, but includes
~
contentious provisions about legal aid in' Scotland.
These enable the financial.
eligibility and contributions tests to be disapplied for assistance by way of
~/
representation in respect of certain proceedings (e.g. mental health proceedings) [or
11&
for advice and assistance for persons who are in receipt of disability working
all~wance.]
Adoption (Inter-country Aspects) Bill. This Private Member's Bill makes provision
for a legal framework for inter-country adoption.
Breeding and Sale of Dogs (Welfare) Bill.. This Private Member's Bill is intended
to improve the welfare of dogs by imposing tighter controls on large dog breeding
establishments.
Fur Farming (prohibition) Bill.
Health Bill. This abolishes GP fund-holding, changes the financial arrangements for
NHS Trusts and imposes a duty.of quality on the NHS in Scotland. The powers to
I:t'
copmmence the Scottish provisions will devolve to the Scottish Ministers.
Immigration
and Asylum Bill.
This Bill includes provision about housing and
111'
maniages.
Mental Health (Amendment) (Scotland) Bill. This is a short Private Member's Bill
to amend the Mental Health (Scotland) Act 1984 to allow incapable patients who
leave hospital to reside in the community to continue to benefit from funds held on
their behalf in the hospital.
Motor Cycle and Pedal Cycle Parking Bill.
This Private Peer's Bill mcludes
I
provision to permit the provision of stands and racks for motor cycles as well as for
pedal cycles and to permit the provision of devices for securing motor cycles or pedal
cycles.
.
~
~
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...
0527kenl.doc
.• ' ,," DRAFT - 27/05/99
.,
insolvency it also provides for tax-approved personal pensions to be protected on .
bankruptcy.
Youth Justice and Criminal
Evidence Bill. This Bill includes provision in relation
to devolved matters in the area of criminal evidence and insolvency, for example to
restrict the ·use by prosecutors of answers andstatei:nents 'given under compulsion ..
..
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0527kenl,doc
Document Outline
