From:
Jamieson JL (lain)
Sent:
28 May 1999 16:12
I
To:
Rogers DA (David); Gordon IW (Ian); Ewing JA (John); Ferguson EW (Eric); Wildgoose
JR (James); Kernohan G (Gerry); Aldridge JS (John); Campbell I (lan)(Exec See}"
Goodall WH (Hamish); Duncan SC (Susan); Stevens M (Mike); Tripp DJ (David);
arr PM
(Paul); Gregson L (Linda); Kernohan N (Norrie); Tyrrell FA (Fiona); Callaghan AJ Ann);
Fleming W (William); ParlyClerk Scotland
Cc:
Walford IN (Ian); Brannan MH (Micheline); Foubister SR (Stuart); Hibbert EW (E
Burgess WG (George)
Subject:
RE: Westminster Bills about devolved matters
WoslmilUtsr
iegiltortion.doc
David. I am away on leave next week and just have time to make some comments
the
attached revised draft of your PS minute and SPQ. However, there are some big questions ,buried in
e
I
comments.
C l'Jase also note that, in the case of the UK.FOI Bill, the Cabinet Office appear to have agreed with that it
'-- is the scope of the Bill which matters not the provisions in it. Therefore, even if the Westminster Bill does
not contain any provisions relating to devolved matters but it confers powers (eg to make regulations~ which
are capable of relating to devolved matters ( eg by a regulation making power), then it is caught by tlie
convention. In that case, the result was that the UK. FOI Bill was amended prior to the publication of the Bill
in draft to make it clear that it excluded devolved matters.
Please also note for the future ( even although it may not be relevant now to the SPQ) that we need a similar
convention in the case of regulations made in the exercise of concurrent powers, particularly those m
e by
MAFF in the case of fisheries/agriculture
under section 57(1). We need to ensure that the practice detelops
that these are not made except with the agreement of Scottish Ministers - unless they are being used ~or
override purposes. lain
I
-----Original Message----o;-
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f.
••••.
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«File:
0524wes1.doc»
«File:
0527spq.doc »
Minute and draft submission attached
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--1--.----.--.--- ....
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1
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t.
From: Ian Walford
ES Cabinet Secretariat
May 1999
First Minister
Copy to:
Deputy First Minister
Scottish Ministers
PS/Perm Sec
PSlDepartments
Director, SCA
Solicitor
Mr Gordon, OSSS
Mr Jamieson
Mr Ewing
Dr Wildgoose
)
Director, InD
C
Mr Rogers
[Special Advisers]
LEGISLATION AT WESTMINSTER ABOUT DEVOLVED MATTERS
Purpose
1.
To seek the First Minister's
approval for the handling
and terms of a statemeJjlt
notifying the Scottish Parliament of Bills which make provision
about devolved matters
which may still before Westminster on D-Day.
The statement also explains the convention
which is expected to be established that Westminster will not normally legislate with regar~
to devolved matters in Scotland without the consent of the Scottish Parliament. The ScottishI
Cabinet agreed on 20 May that a statement along these 1mes should be made.
"1
. Timing
2.
Urgent.
The statement should be made before the Scottish Parliament
is asked tq
•
I
consent to the Food Standards Agency Bill on [ ] June. Accorditlgly it would be helpful toI
have the First Minister's response by [].
It could any comments :trom other Ministers on th~
proposals please be sent to you by []?
Westminister
[email address]
1
3.
Nothing in the Scotland Act prevents the Westminster Parliament from legislatiJIg
about devolved matters.
However, Lord Sewel announced to the Lords on 21 July 1998 ~at
the Government "would expect a convention to be established that Westminster would riot
nonnally
legislate with regard to devolved matters in Scotland witho~t the consent of tp.e
Scottish Parliament".
This announcement
was reflected
in Mrs' Beckett's
evidence :in
November to the Commons Procedure Committee's inquiry into the procedural consequenc~s
of devolution.
The Committee's report published on 24 May says that the Committee suppqrt
the principles behind Mrs Beckett's statement and agree that the House should not legislalte
without the consent of the devolved legislature concerned .
.'
4.
In practice, we would expect that a Westminster Bill COyming relating to -devolved
)
matters in Scotland would nonnally be promoted by the UK. Government only when UK. arid
Scottish Ministers agree that a particular matter should be covered by a UK. or GB-wide Adt.
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.
{David. This is a hollow explanation.
How many of the existing/future examples fall within this descrption?l
,
,d~
\o.L< ..
-.~')~.......-<~~'
5.
The convention is likely to be invoked for the first time if the FSA Bill if it i~
published
in June, as there is a public commitment by the UK. Government
to seek th~
Scottish
Parliament's
consent
before
proceedmg
f1:1.rther· introducing
the
Bill-~
Westminster. [David. Surely the convention means that the Scottish Parliament must agree t0
-Westminister· ·legislating ···before. the .Bill -is--introduced~ intothe-Westminister.
Parliament~- --_ - ._.._-
Otherwise, it is a waste of time because the Scottish Parliament is being presented with a fait
accompli. The proposal as I last understood it was that the SP was being asked to agree to
agree to the draft consultative FSA Bill being introduced and dealt with at Westminster. This
I
paragraph and paragraph 8 indicates that this may have changed. Has it and if so why?l
I
Detailed advice is being prepared by AEFD.
The Bill will se~ a precedent for the Scottisl1
Parliament's consent being sought to a detailed proposal for legislation in the fonn of a drafli
Bill.
[Mr BeatonlMr Parr, I will need to insert something here if consent is also to be sought for:
the Financial Services and Markets Bill or the Vienna Sales Convention Bill. I have minuted
you separ,ately about that.)
Westminister
[email address]
2
, I
, ,
Bills currently before Westminster
6.
A number of Bills which make provision about devolved matters are likely still to be
before Westminster on D-Day.
They are listed in attachment.
It is expected that Scottish
OfficeI\1inisters
JDa~<!.Has_~~ be~I:l~~~!~e~~t
_~~ __
~~_~~t~
~~ the _~~_~ll
~~~~e
known as the Scottish office ? If not, I do not think that it is appropriate to speak of Scotti$h
0 1.(
Office Ministers in this way. You should refer to the Secretary of State. This applies to su4h
references throughout this draftl will consult the appropriate
Scottish Ministers
about ~e
handling of the remaining stages of ~ese Bills.
One could make a case that the Scottish
Parliament should be asked formally to consent to the legislative process continuing for these
(
)
Bills. However, there would be little point as the Bills are at advanced stages and the Scotti$.
Parliament will be able to repeal or amend them in due course should it see fit.
7.
Cabinet agreed on 20 May that the First Minister should make a statement to th~
Scottish Parliament explaining the position with regard to these Bills and the convention
about consent for future legislation.
A
draft statement is attached.
It takes the form of th~
answer to an arranged SPQ.
8.
The statement should ideally be made advance of the proposed debate in the Scottisl11
Parliament on the FSA Bill. That is timetabied for [ ], follo~>;'iBgthe 8Kpected publication of
_
the Bill at ',Â¥estminster on [ ]. [David.
See comment on paragraph 5lThis points to the SPQ
;:'.. )--- being-answered-on
-[-].----Should-MSPs- wish-~() -debate-the -statement,we-would-advise--
conceding a short debate.
Presentation
9.
Most of the Bills on the list have the potential to attract the attention of the media, as
will any announcement
by the First Minister.
We .therefore prospose that the statement:
should be the subject of a press release.
We will put up that and lines for InD to take for,
clearance in due course.
I'
Informing the Secretary of State
Westminister
legislanon.docQ521·,y@s1.00G
3
10.
Scottish Office Ministers have an interest both in the Bills listed in the statement and
the working of the proposed convention over the longer term.
We therefore propose, if the
First Minister agrees, to copy the. statement to the Secretary of State.
Recommendation
._~--------~~------~~--~--------~---~--------
11.
I recommend that, subject to the views of other Ministers, the First Minister should:
M11.1
agree to the terms of the attached arranged SPQ notifying the Scottish
Parliament
about the expected convention
about consent to future Westminster
legislation about devolved matters, and explaining the position of this session's Bills
which may still be before Westminster on D-Day;
-h211.2
agree that the statement should be made on [ ], before the expected
debate on the FSA Bill on [];
~
11.3 .
agree that we may copy the proposed statement in advance to the
Secretary of State for Scotland;
+A 11.4
agree that the statement should be the subject of a press release.
IAN WALFORD
ES Cabinet Secretariat
Room 049
SAH
Ext 45532
May 1999
West111inister
[email address]
4
:I
[JUNE]
WRITT1lli
[The format will obviously have to be changed to whatever is the form for SPQs]
SCOTTISHPARL~NT
---~·«NaDle»-«(Constituenc¥»):-'I'o--ask-the-ScottishExecutive,jfjt_.wil1
make-.a--8tatement~_ab~9~u~~t
_
legislation by the United Kingdom Parliament
about matters within the legislative
competence of the Scottish Parliament.
(<<NumbeD»
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 possible that some of these will still&e
under consideration
at Westminster
on 1 July, albeit at advanced stages of th$"
passage.
The table lists the Bills concerned.
[The Scottish Ministers are bei4g
consulted by the Scottish Office about the handling of the remaining stages of this
legislation].
[Can you all please check that this statement will be justified?]
It will
be open to the Scottis
~~I.1t,·,to amend or repeals
Bill, once they atje
','')
enacted, so far as
ey makes provision within its legislative S-- petence. [David. N9t
,_._-~
'
c--_
--------,
aiwa-shecause-the
---eori11e-r---·~ti:maae1fficliCDUt lrbeond- c6n:Ce1encee~---------
to have a special rule of SPL where none existed before. In the case of the FSA wf
might like Canute
say no but it is doubtful how far we could amend it or confer
Scottish functions upon the FSA J
•
Following devolution, the Westminster Parliament will retain its competence
to legislate about any matter, including matters within the legislative competence of
the Scottish Parliament.
However, Lord Sewel announce to the House of Lords o~ 21,
July
1998 that the United Kingdom
Government
expects
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.
The Procedure
Westminister legislation.doc0524 wes1.dec
Committee of the House of Commons has indicated its support for this approach in its
report published on 24 May.
Examples of· the circmnstances 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 qf
---.------------
.-- .. ------
enforcement or regulation, or where it is proposed that a new public authority shoul~
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 Executive to. seek the consent of the Scottish Parliament.fDavid. Sam~
comment as in para 3 above. In any event, it is required when you go on to describ~
the nature of the provision in the Bills in question, not many of which fall within sucn
description1
[Are any of these now enacted or certain to achieve Royal Assent by 1 July? Ifso, I
can strike them off the list.)
[Mr Stage, you are checking whether there are any other Bills lurking out there whic~
nobody has told us about which ought to be on this list.)
Access to Justice Bill. This Bill deals primarily with England & Wales, but includes
contentious provisions about legal aid in Scotland
These enable the financiall
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.] [1
do not understand the last bit.)
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.
[Can a short be supplied of the purpose 'and effect,
and an indication whether it is a private member's bill or not.)
Health Bill. This abolishes GP fund-holding, changes the financial arrangements fot'
NHS Trusts and imposes a duty of quality on the NHS in Scotland. The powers to
copmmence the Scottish provisions will devolve to the Scottish Ministers.
Immigration
and Asylum Bill~ This Bill includes provision about housing and
marriages.
[Can this explanation be expanded a bit please?1
Westminister
legislation.doc(J524
w8s1.GeE)
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 W1ho
leave hospital to reside in the community to continue to benefit ftom :fundsheld on
their behalf in the hospital.
Motor Cycle and Pedal Cycle Parking Bill.
This Private Peer's Bill inc1uq.es
provision to permit the provision of stands and racks for motor cycles as well as for
--------------------pedalcycles
and to permit the provision of devices -for-securing motor cycles or pedaL ...
cycles.
[Scottish Enterprise Bill. This Bill makes provision to increase the limit of centJ;al
government funding which SE can receive ftom £3bn to £4bn.]
[Is this one now
enacted?]
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.
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 Scotti~h
family law in order to allow sharing of pensions on divorce. In the reserved area ~f
insolvency it also provides for tax-approved personal pensions to be protected on
banlauptcy.
Youth Justice and Criminal Evidence Bill. This Bill includes provision in relatidn
to devolved matters in the area of criminal evidence and insolvency, for example ~o
restrict the use by prosecutors of answers and statements given under compulsion.
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Westminister legislation.doc0524 ',ves1.dac
Document Outline
