Mr Walford
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Mr Burgess
Mr Ewmg
Mr Sinclair
~Walf~ld
Mr Ferrie
Ms Hibbert
Mrs Nelson
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SCOTLAND
BILL: FUTURE WESTMINSTER LEGISLATION
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Thank you for sending me a copy of Ian Jamieson's minute of 6 NoV'emberand of your
minute to John Ewing of 9 November.
I have since seen the further exchanges between you
on 10 and 11 November.
2.
Cabinet agreed the legislative programme for 1998/99 last Thursday.
The Scottish
involvement is set out in the attached Annex.
I have tried to categorise the Bills into
devolved and reserved as best I can, but I cannot guarantee that I have got it right iI;J.every
C.\ case.
,.
3.
You asked when these Bills are likely to receive Royal Assent
I know that every
effort is to be made to enact the NHS (Amendment) Bill before 1 April 1999, but that will be
a tall order given that the next Session of Parliament is not due to start until 24 November.
I
think that the reality is that most of the Bills listed in the Annex will still be on the go after
6 May and some will still be on the go after 1 July.
4.
I can see no way round the likelihood that at least some Bills with devolved Scottish
provisions will still be on the go when the Scottish Parliament becomes operational.
However, these Bills are likely to be close to completing their passage through Westminster
and I am not sure that activating the "consent procedure" is likely to be meaningful at such an
advanced stage of the game. Will there be sufficient time between D-day and Recess to hold
the Debate(s) in the Scottish Parliament?
What happens to the legislation if the Scottish
Parliament withholds consent in relation to the principle?
Will all of the Scottish devolved
provisions in the Bill(s) simply fall or will Westminster simply take note of the Scottish
Parliament vote and enact the Bill - leaving it to the Scottish Parliament to take corrective
Q
legislative action, as they deem necessary?
C·
·5.
I recognise that, in political terms, it may not be possible to avoid activating the
,"consent procedure" but it seems to me to be potentially fraught with difficulties.
On the
other hand, if you consider the actual policies underlying the Bills listed in the Annex it is
difficult to envisage any complexion of Scottish Parliament failing to consent to all of the
Bills listed in the programme, devolved and Private Members categories.
The possible
exception is the NHS (Amendment) Bill, but it is almost certain to be on the statute book
before the Scottish Parliament becomes operational.
In my view the difficulties here are
likely to be more hypothetical than real.
6.
To enable you to consider this information I will comment separately on the other
matters raised by lain Jamieson.
E W FERGUSON
11 November 1998
Room 6/2
Dover House
FFAlO04D.DOC
'Anne
Scottish Involvement in the Westminster Legislative Programme 1998/99
Scottish Programme Bill
Scottish Enterprise (Financial Limits Bill)
,,
GB Bills with devolved Scottish provisions
Water Charges Bill
NHS (Amendment) Bill
Modemisation of Justice Bill
Road Traffic Act (NHS Charges) - uncontroversial Bill which may not run
GB Bills with reserved Scottish provisions
Welfare Reform and Pension Sharing
Age of Consent and Abuse of Trust Bill
Disability Rights Commission
Working Families Tax Credit
Asylum and Immigration
Fairness at Work
Scottish Private Members' Bills
Consent to Medical Treatment
Leasehold Casualties
Incapax Patients' Fund
("
FFAI004D.DOC
From: Ian Walford
CG-Functions
Date:
10 November 1998 .
Mr Jamieson
Copy to:
Mr Gordon
Mr Sinclair
Mr Ewing
Mr Ferrie
Mr Ferguson, LD
Mrs Nelson
Mr 0 Kelly
Mr Rogers
Ms Hibbert
Mr Burgess
Parly Clerk
.1>-
..-':~
)
SCOTLAND BILL: FUTURE WESTMINSTER LEGISLATION
1.
Thank you for your minute of to day's date. As I said in my minute yesterday, so
e
of the questions about possible future legislation at Westminster are really for Mr Ewi g
(who is leading for our interests on the Procedure Committee ·inquiry and on the proced
es
of the Scottish Parliament) and others to answer. But I would like to respond immediately to
some of your points.
Consent Mechanism
r
3.
As you say, it is important in such circumstances that Scottish Ministers secure th
consent of the Scottish Parliament both to the proposal to legislate and to the principle of th
Bill in question.
Thereafter, as I said in my minute yesterday, it would be for Scottis
Ministers and their officials to liaise with their relevant opposite numbers in Whitehall as th
Bill progresses through Westminster. In doing so they would be accountable to Holyrood an
would doubtless take this into account in deciding when and in what terms to report to MSPs
I am not sure that this quite amounts to the Scottish Parliament "losing control over the detai
···-of-the·legislatien'~-Yltimately,-as·you
say -in paragraph 2.3 of your minute, Holyrood coul
n._trump the Westminster legislation if it wished, but this should not be necessary if the. spirit
well as the letter of the convention has been observed in London.
4.
Mr Burgess has pointed out to me that another issue which will need to be considere
is how the convention and consent mechansims should apply to any proposed private and
private members' legislation at Westminster.
Again this will be a matter for the Proce ure
Committee and the House Authorities to consider
Ministerial and official responsibilities
5.
I was not suggesting in my minute of yesterday that Ministerial
responsibility
for
Westminster legislation on devolved matters should rest with Scottish Ministers and
eir
officials.
As I said in paragraph 7, for the r~mainder of the 1998-1999 session after D-D y I
would expect the UK Minister who was responsible for the relevant legislation before D-
ay
(e.g. the Secretary of State for Health) to remain responsible for it after D-Day.
In para
ph
8 I said that it will be for the Prime Minister to decide which of his Ministers (i.e. a Mini ter
in the UK Government) should be responsible for legislation o~ devolved matters in 19 9-
2000 and beyond.
6.
I would not expect the Secretary of State for Scotland to be the lead Minister on v ry
..~
much if any legislation after devolution since we are expecting his Office to be left
'th
)
relatively few executive functions. In any event I imagine that any legislation on devol ed
matters at Westminster would be likely (although this is not inevitable) to take the form 0 a
Bill of UK or GB-wide application. In such circumstances the relevant Whitehall Secretary of
State would be in the lead although we would expect the Secret
of State for Scotland· to
playa part in the policy formulation and
robabl
to b . volved in some ca ad
durin
passage of the Bill. This principle should apply in the remainder of the 1998-99 session
D-Day and in future sessions.
7.
I agree with you that the Procedure Committee will need to think carefully about h w
relevant
UK Ministers,
including the Secretary of State for Scotland,
should
be he d
accountable by Westminster MPs for their handling of legislation on devolved matters.
B t
provided that they are legislating with the consent of Holyrood I would not have thought th t
there woul~
an insuperable problem - and in any case the issue should arise relative y
infrequently ..
8.
In paragraph 3.3 of your minute you questioned whether it would be appropriate :fi r
officials of the Scottish Administration
to brief UK Ministers.
As I said in my minu e
yesterday, we are planning generally on the basis that there will be a reasonably free flow
f
I.
'
..
informatioIiand
frequent consultation between Scottish Ministers and officials and the' r
counterparts in the UK Government on the basis of principles laid out in concordats.
I do n t
see why these arrangements
should not extend to the provision
of factual briefing
an
suggested lines to take for UK Ministers dealing with legislation
on devolved matters
Westminster where the Scottish Parliament has already consented to the principle of th
legislation.
As you say yourself in paragraph 3.4, this would in effect amount to no mor
thanpconsultation.and
should not blur lines of accountability.
As discussed above, I woul
..certainly not see this as a substitute for a UK Minister taking responsibility fOIthe Bill.
IAN WALFORD
10 November 1998
· \
CG-Functions
.
Room G-H94
VQ
Ext 45532
)
)
From: Ian Walford
CG-Functions
Date: 9 November 1998
Mr Ewing
'X-Mr G~~don------ -------Mr Jamieson----·__
Copy to:
h
__
m"
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••••
-
,.
Mr Ewing
Mr Sinclair
Mr Ferguson, LD
Mr Ferrie
Mr 0 Kelly
Mrs Nelson
Mr Rogers
Ms Hibbert
Mr Burgess
Parly Clerk
SCOTLAND BILL: FUTURE WESTMINSTER LEGISLATION
X
1.
I refer to Mr Jamieson's minute of 6 November addressed to Mr Rogers. You, I and
Mr Ferguson (to whom I am sending a copy ofMr Jamieson's minute) all have an interest in
this issue. I am also copying this minute and Mr Jamieson's to Owen Kelly, because the
possibility may arise from time to time of UK or GB Ie islation bein
introduced at
Westminster to implement an EU obligation which relates to devolved matters, as
foreshadowed in 5.8 of the White Paper, and to Parly Clerk.
2.
You will recall that the whole matter of future legislation at Westminster was
addressed in the PS/minute which Mr Gordon put to the Secretary of State in June. In it he
recommended that the Secretary of State seek colleagues' agreement to a convention
governing future legislation on devolved matters at Westminster.
As you know, DSWR
colleagues did subsequently agree that a convention should be established under' which
o Westmmster wo norm y ony eglslate on devolved matters with the consent of the
Scottish Parliament. This convention was announced in the House of Lords in July during
the passage of the Scotland Bill.
'
3.
As part of the same submission Mr Gordon gave Ministers details of the then
proposed legislation for the 1998-99 session which would relate to devolved matters. This
information had been assembled by Liaison Division. Ministers were invited to consider
whether any legislation relating to devolved matters should be introduced in the 1998-99
session bearing in mind the risks that (a) it could be criticised for pre-empting the Scottish
Parliament and (b) that it could still be before Parliament on D-Day. Ministers took some
time to consider the list. They eventually decided that for various operational reasons it was
essential that the Water Charges Bill and Road Traffic (NHS Charges) Bill should be
introduced in 1998-99 in spite of the possib e risks.
(In
ct It is intended that the latter
should be enacted and commenced before 1 April 1999). I
derstand that Ministers also
decided that some quite technical Scottish provisions should b included in a Modemisation
of Justice Bill. I am not aware of any other candidates for the
98-99 session, but I would
/' be grateful if Mr Ferguson could let us know whether there are an
d if so whether th
~y intelligence on when they are likely to receive Royal Assent.
4.
Mr Jamieson has raised some questions which we need to consider about ~ow any I
(presumably very infrequent) legislation on devolved matters at Westminster should be
handled at Westminster and in the Scottish Parliament, both in the 1998-99 'transitional'
SeSSIOnand beyond. (The Food Standards Agency Bill may be a significant early test case,
probably in the year 1999-2000).
5..
, TheJrrst (obvious) p_oin~tom(l](.~isth~t,ift~e con,:entJ~_ni~o!>~se0'ed,legislation on.
devolved matters will only be introduced if the Scottish Parliament has consented to it. We
have spoken before about the mechanism by which Scottish Ministers would obtain the
Parliament's consent, on the assumption that they would themselves have had prior
discussions with the UK Government about the possibility of legislation at Westminster on a
particular matter and agreed that it would be desirable. I think your view is that a Scottish
Minister would put a motion to the Scottish Parliament explaining and justifying theintention
to legislate at Westminster. The motion would presumably need to secure a ma'ority in a
c
vote in order to signify consent. You also take the view, I think, that only consent to the
-rinci Ie of the legislation would need to be obtained, rather than consent for the legislation
in its final form.
t wo
eor
cottish Ministers to negotiate with UK Ministers on the
precise terms of the proposed' legislation.
There is, however, an argument for Scottish
Ministers being required underStanding
Orders to report to the Parliament at periodic
ihtervals during the passage of the relevant legislation through Westminster - for example
after the completion of the Commons stages - if only to demonstrate that they are keeping in
close touch with progress.
6.
I assume that this 'consent procedure' will need to be activated for the first time
immediately after D-day in respect of any legislation on devolved matters which is still before
Westminster.
7.
Mr Jamieson also asked about the implications of the likely outcome of the Procedure
Committee's inquiry into the consequences of devolution. My view is that any legislation
relating to devolved matters which is before Westminster on D-Day and any questions about
C
it should continue to be haridled by the Minister who was handling it before D-d~.
Scottish
:,
····."i
I
, Ministers would need to make this clear when they made their statement seeking consent (see
(
paragraph 6).
Scottish Ministers might also make it clear then that they ex ect to be
consulted by UK Ministers about any l'0~!ble G vernment amendments to the Ie islation
and that they expect their officials to be involved in briefing the relevant UK Minister in
charge of the Bril(s). Such arrangements, which would apply in respect of future legislation
introduced at Westminster under the convention as well as unfmished legislation in the 1998-
99 session, would be perfectly consistent with the arrangements for consultation and
information exchange which we are intending should be put in concordats, and indeed with
the convention itself.
8.
I!!_~2-99-2000and b~.>~o~~}twill be for the Prime Minister to decide which of his
Ministers should handle legislation at-Westminster relatingto devolved matter~, although this
WOuldpresumably be a matter for discussioii--mfu'ScottIsh MU;:i~t~~s-i'll
the period before the
latter seek the consent of Holyrood to the legislation in question.
Mr Rogers
Copy to:
,X Mr Gordon
Mr Sinclair
Mr Ewing
Mr Ferrie
Mr Walford
Mrs Nelson
'f(
~._~~~~~~Hibhert~_~_~
Mr Burgess
SCOTLAND BILL: FUTURE WESTMINSTER LEGISLATION
/)<:J
\
1.
It would appear that there is intended to be a number of GB Bills next session whicb-
will deal with devolved matters, such as 'the Water Ch~ges Bilt"and the Road Traffic (NH'
Charges) Bill.
2.
As you are aware, from a purely constitutional point of view, we are in principl
agafust such legislation because it undermines the devolution settlement and the propose
constitutional convention.
3.
However, there are also practical concerns. You will have seen Margaret Beckett'
letter to the Lord Chancellor of 29 October about the procedural consequences of devolutio
in the Westminster Parliament.
Ministers of the Crown will cease to have Ministeri 1
responsibility for devolved matters as from D-day.
Which Minister is then to hav
Ministerial responsibility for devolved matters in GB Bills and does that res onsibili
exten
to answering PQs a out these ma ers.
not, wynot,
partie arly when they are steerin¥
tfirough legislation about these matters. Is this to become the responsibility of the Secret
of State for Scotland?
lain Jamieson
J L JAMIESON
6 November 1998
Constitution Group
Solicitor's Office
1-C,
Victoria Quay
Ext 40575
Fax 47804
G:\j oint\e- mail\jamieson.doc
Document Outline
