....•• '
(l q '],
.....
~.-.l..
~ers
DA (David)
From:
Thomson KAL (Ken)
Sent:p~ __.
17 JuoEL1~~~t08:19
__ ~~_~
~~p
.
~
_
To:
Brannan-MH (Micheline); First Minister
Cc:
PS/Executive Secretariat; PS/HD; Minister for Children and Education; Minister for
Enterprise and Lifelong Learning;Minister for Finance; Minister for Parliament; Mini~ter for
--
--~--------------Health-and
Community Care; Ministerfor Rural Affairs; Minister for Social Inclusionlocal
Govt. & Housing; Minister for Transport and Environment; PS/AEFD;
PS/DD; PS/DoH;
PS/EID; PS/Perm See; Deputy First Minister (Minister for Justice); Scottish Courts; :
Kernohan G (Gerry); Ewing JA (John); Walford IN (Ian); Campbell I (lan)(Exec See)!
Rogers DA (David); JamiesonJL (lain); Stage ID (Ian); Rafferty JA (John); Whitton
b
(David); Fitzpatrick B (Brian); InD Enterprise≪ InD Justice; Gordon RSB (Robert)~
-
I
Campbell N (Niall)
-
Subject:
RE: WESTMINSTER LEGISLATIONON DEVOLVED MATTERS
Mrs Brannan
Copy as above
C' WESTMINSTER LEGISLATION ON DEVOLVED MATTERS
My minute of yesterday to you was not copied to all recipients of yours of 15 June, so I now enclose a foPY·
Since I minuted, the SNP has indicated that it wishes to debate these Bills (probably for 30 minutes takpn
out of the time previously allotted to the Food Standards Agency Bill) and would welcome a proposal fom
the Executive oil how the Scottish Parliament may be kept'informed of such legislation.
Mr Ewing is
considering that point and will provide further advice.
-
KALTHOMSON
PS/First Minister
17 June 1999
LEGISLATION AT
WESTMINSTER
ABO •..
1
Rogers
DA (_D_av_i_d)
•••••
.-_
From:
Thomson KAL (Ken)
Sent:
16 June 1999 16:J6 __ u __ ....
_
••
To:
Gordon RSB (Robert); Rogers DA (David); BrannanMH (Micheline) ....-
Cc:
Minister for Parliament; PS/HD; Hislop E (Elizabeth); Campbell I (lan)(Exec See)
Subject:
LEGISLATION AT WESTMINSTER ABOUT MATTERS WITHIN THE COMPETEN<J;E OF
THE SCOTTISH PARLIAMENT
Robert Gordon
Micheline Brannan
David Rogers
Copy as above
LEGISLATION AT WESTMINSTER ABOUT MATTERS WITHIN THE COMPETENCE OFITHE
SCOTTJSH PARLIAMENT
lve spoken to FM in the light of conversations with Robert and David and with Micheline's
(
memorandum in hand.
'
He repeats his concern at the potential for mischief or outrage arising from the meeting later today with the,
SNP. He remains of the view that the meeting is the best way forward, but adjoins us all to, appreciate tjhe
sensitivity of reserved/devolved
distinctions where the SNP is concerned.
He is generally content with the memorandum, subject to a slight expansion of the first paragraph, to re~d:
As the First Minister indicated in his statement to the Parliament on 9 June, both the Scottish,
'
Executive and the UK Government expect that, by convention, the Westminster Parliament will Inot
normally legislate about devolved matters without the consent of the Scottish Parliament.
:
Discussion of Bills which will or may come before the Westminster Parliament before the Scottish
Parliament assumes its full powers is in,that context.
'
In respect of the Financial Services and Markets Bill, however, he still finds it hard to accept that it is
:pl"~essaryfor the UK Government to introduce a new reserved 'island' in order to achieve its policy
,
•. t~.:ctives.
He wants to be able to take stock of the SNP's reaction and other considerations, and he do~s
~ot
rule out having to seek the Parliament's
consent. He regards any diminution of the Parliament's abi~ty
to legislate in respect of Scots private law as a serious matter.
'
As regards the proposal to amend the A-ccess to Justice Bill to allow Scottish judges to take part more e~i1y
in international courts, he takes the view that he has informed the Parliament of the fact that the Access ~o
Justice Bill is before the Westminster Parliament and that it deals with some devolved matters. He is
inclined to rest on that, to see if the' prospective amendment is raised in the Parliament and to respond, if
necessary, by pointing out that it will be open to the Parliament to amend any provision so introduce~.
If you need to contact me before the meeting, try 0385,95 10 10.
K A L THOMSON
,PS/First Minister
16 June 1999
1
I')
•
/ r"'~,
'"
.:.:..-~_..
Mr Jamieson, ESLA
-
/
'---.../"
~-r-
",Ci
~
Copy to:
PS/Executive Secretariat
Mr P Layden
..
\
Mr Rogers
Ms S Cooper
t~)S t.\
~
Mr I Campbell
Mr S Foubister
Mr Burgess
Mr W Ferrie
Mr J A Gibbons
Ms E MacDonald
Solicitor
Ms A Coull
Mr McCluskie
Ms G Russell
Mr J Sh;iW
Mr N Taylor
WESTMINSTER
BILLS
ABOUT
DEVOLVED
MATTERS:
OPERATION
OF
CONVENTION
1.
Thank: you for your minute of today which very lucidly sets out the issues concerning
,
the granting of consent to Westminster legislation.
2.
Following the meeting with the SNP last night and subsequent discussion with the
First Minister I have prepared the attached submission which attempts to set out some
procedures which would be adopted by the Executive in respect of such legislation in the
future. My aim is to come up with something that can operate practically and which might
encourage the Parliament to consider some of this legislation to be of a technical nature not
requiring debate.
Others, like the FSA Bill, are likely to be of such substance that the
Parliament will always want to debate the provisions. Your comments on the proposals would
be welcome.
3.
We also discussed the possibility of a better long term solution to this type of problem
namely the enactment in an ASP of a power analogous to that contained in section 104 of the
Scotland Act. Such a power would enable Scottish Ministers to make subordinate legislation
subject to approval in the Scottish Parliament which would contain provisions which were ,
deemed to be necessary as a consequence of the enactment of legislation at Westminster.
Such a power is likely to be seen as giving more control to the Scottish Parliament over
(
matters which at present would have to be dealt with either in Westminster legislation or in a
ragbag of various Miscellaneous Provisions Bills enacted every year to' catch up on changes
at Westminster.
Again I would welcome comments on this proposal.
I
4.
I 'need to put the minute up to the First Minister on Monday at the latest.
Can I,
therefore,
ask for comments by 12 noon on Monday 21 June.
--- ..-'--~-:-:--';IQHN--EWING ---------------~---~---.--.--.--.-.-.-.---.-.----
..__.__ . _...
.. _.
Executive Secretariat '
..
~
..
.. __..
_
Rm 047
-SAH
•
4 0357
17 June 1999
lhi01306.doc
17/06/199921:33
· DRAFT
21:34
From:
John Ewing
Executive Secretariat
June 1999
PS/First Minister
Copy to:
PSlMinister for Parliament
PS/Lord Advocate
PS/Mr McConnell
PS/Perm Sec
PS/Exec Sec
Solicitor
Mr Jamieson
Mr Walford
Mr Kelly
WESTMINSTER BILLS ABOUT DEVOLVED MATTERS:
OPERATION OF
CONVENTION
1.
This minute seeks the First Minister's agreement to the mechanisms we should put in
place to obtain the Scottish Parliament's consent for legislation at Westminster which affects
devolved matters and suggests how we might meet the SNP concerns on keeping the
Parliament informed of such legislation. It also invites the First Minister to consider whether ,
we should bring forward an Act of the Scottish Parliament to allow any changes to devolved '
legislation made necessary as a consequence of the enactment of the legislation at
Westminster to proceed by subordinate legislation laid before the Scottish Parliament.
. Timing
)
2.
Urgent. There will need to be a statement made onthese matters during the debate on
I
,
the Food Standards Agency Bill next week.
Background
3.
The First Minister is aware of the discussions which have been
the hanalin!ror3-Bitts-which-may-come-forw-ard--at-Westminstwhich,
_whi1e~prim~lyl
~
_
.
-
-,
.
-
concern~dwith ~~served-matters,makes changes-iilScots pnvate1aw-in-devolved--areas:-Thel-....:.-·
---"'~
SNPare concerned at theftequencywith.which_§ucJJ.~i1ls are e~erging ~_",ell as the facti
that they intrude on the general presumption that the Scottish Parliament should alone bel
lhi01206.doc
17/06/199921:34
I
. DRAFT
21:34
responsible for making changes to devolved law. Their worry is that this will become too
frequent an occurrence and that the convention which Ministers have placed such store on
would not in practice operate effectively to protect the position of the Scottish Parliament.
4.
During next weeks debate the SNP will want to secure assurances from the Executive
on the operation of the convention and details of how the Scottish Parliament might be kept
informed of Westminster legislation which impacts on devolved matters.
This paper
discusses how that right be achieved.
Westminster Convention
5.
The·UK Government has made it clear that it expects a convention to be established'
'i~
~t
the UK Parliament would not normally legislate with regard to devolved matters in'
('-
Scotland without the consent of the Scottish Parliament.
However, neither the UK
Government nor the UK Parliament have indicated how they expect the Convention to
operate in practice. It is not envisaged that a W~stminster Bill we~l~quire
the consent of;
. the Scottish Parliament to·be signified.in the same way as~require
the consent o~~'
Queen to interfering with Her property, ie before a particular stage of the Bill is reached
otherwise the relevant provisions in the Bill fall. Ultimately, whether or not the Scottish
Parliament consented, the UK Parliament could legislate on any matter.
(
6.
Given that the convention is based on the presumption that the active consent of the
Parliament will be sought rather than that the Parliament will simply be informed of the
.J
paSsage of legislation at Westminster, we think it is inevitable that some form of motion will
have to be tabled before the Parliament. Whether that motion has to be debated will depend
on the circumstances in any individual case. Broadly speaking the kind of legislation we are
likely to be dealing with fall into 3 categories:
6...1_.... ~~~~~~~e legisl~tion in a devolved area which t1l~Sl;uttilShParlianltmt cuuldl
~
.~
__
u.
__
~
.--_·~----~-=.::.:.::-._._:._~it~vm
1)utw~J?!:..£oilCyre-;;;m~lSren
appropnateToprQceeclon-a-clBl----
---
---
-----
---r---_~
.
'·----
.
...
_.u
_
basis, eg the Food Standards Agency Bill;
lhi01206.doc
17/06/199921:34
2
· DRAFT
21:34
/
C£;e-d:.I.? ,.,,'
",'
,1 "-;'
')
-
~
"
~
..
U
I
6.2
legislation in a reserved area which r~ujres amendment 1D Scots PrlVaJw
in order for the legislation to operate effectively, eg the Electronic Commerce Bill;
and,
6.3
legislation in a reserved area which makes incidental amendments to Scot~
/1/
v .
-'
---
private law, eg the Financial Services and Markets Bill.
,'~
tf'-e.-., v
f;;~};t~
c--
r r ')~
7.
It is arguable that the
nvention should not apply at all to the third category of Bills ,
~
'since these will be dea .
with matters whic the S~§)ijis1L
Parliament could not legislate:
--"
IV ,I-,
1~'~1 Z'Lp{"~,,
upon in its own right.
e'
.
c -Bills might not normally be drawn to the
I
,
attention of the ParIi
t they could, during their passage, attract amendments which would
bring them within the scope of devolved matters. Any procedure we develop will need to be ,
@
robust enough to be able to pick up these should that happen.
8.
Of the remaining 2 categories, both would need the consent of the Parliament but we
suggest that for the most part only in the first case where the Parliament is effectively being I
asked to forego the opportunity to legislate in an, area, should there be the need for al
substantive debate. In the second category it is to be hoped that the Parliament could 'be I
persuaded that any motion could be regarded as a technical matter and generally approved,
without debate.
However, the Parliament's willingness to embrace that approach will'
(,
undoubtedly depend how frequently the situation arises.
9.
Colleagues in HD advise that they would normally expect to deal with between 6-8
,.)
pieces of legislation a year promoted by other Departments in the UK Government but which
have an impact on Scots civil law and require appropriate provisions to be included. Although
these changes might be fairly technical the frequency with which such Bills arise provides an
opportunity for complamt.
Procedure in the Scottish Parliament
-.-------,',-_.-
---------
_. __ .._._--~----_._-,_
.. - ----.--
-----~-------.------_.-,-- --'-.---
--------------------------=-----=========:::=::-:--------=c:------:-------:-----:--:-c---:-:-:----,--,--
-----'--'----
__
-,
--._--~--------~~-.
__ ._._..__.._'-----------~._---~---~--~-_._-------
-.-.- ..... _-------
10.
MSPs will want the reassurance that they are kept fuformed of any proposals to
legislate on devolved matters and that theyare kept abreast ofc~ges
which might emerge
during the passage of a Bill at Westminster. The SNP will be keen to ensure that where
lhi01206.doc
17/06/199921:34
3
· DRAFT
21:34
substantive changes do arise there could be the opportunity for debate in the Parliament,
effectively allowing it to reconsider the matter of its consent. . However, in practical terms we
need to avoid a situation where the Parliament is frequently de~ating such matters since not
only is it potentially embarrassing but it also detracts from the time available to deal with
other issues. We would, therefore, propose the following approach.
11.
Where a policy decision is taken to legislate about a devolved matter at Westminster
rather than introduce legislation in the Scottish Parliament, then the consent of the Scottish,
Parliament to that proposal should be obtained at the earliest opportunity.
This should be on
the basis of firm policy recommendations
such as those which might be included in a White I
Paper. It will be necessary to give sufficient information to the Parliament to enable it to take,
an informed decision on the matter.
Such information could be provided by means of a
I
policy memorandum
and the Parliament) consent obtained by a motion which could bel
debated.
12.
Thereafter it would be necessary to keep the Parliament informed on the developmentl
of that legislation. This could be done by submitting a supplementary memorandum coverin~
a copy of the Bill as it is introduced into the Westminster Parliament.
Depending on th~
substance of the matter and the extent to which the Bill strays into devolved areas, it may be
necessary to allow the Parliament to debate the precise terms of the Bill if this differs in anY[
(
significant way from the initial proposals. In the' most substantive cases we may need to '
\
ensure that the Parliament has an opportunity to debate the Bill as introduced at Westminster.
)
13.
In the case ofthe second category oflegislation
referred to above, the proposal woulq'
be that the Parliament would be again informed by means of a memorandum of the fact that a
Bill was to be introduced at Westminster which makes provision about devolved matters;
The Parliament's
consent to this legislation would still be sought by means of a motion but
the aim would be to secure through discussion in the Parliamentary Bureau that the motioI}
did not require any debate. It would probably still be necess~~~ive
a commitment that the
-:-:::::::~=='-'----Paruament~wotitdj)e::advisedi1Y---IDeans-of~~
5!!tJP:l~~ntary_~!!~~~~~_~~~~~~~~~:_~
__.-~_..
by the Executive should the legislation be amended so as to incre~se the extent of the changes
-in devolved matters.
Jhj.01206.doc
17/06/199921:34
4
. DRAFT
21 :34
14.
This procedure
is obviously
dependent
on the Executive
co-operating
with the
Parliament.
It is possible that the SNP would prefer to see a formal arrangement between the
Wes1minster Parliament and the Scottish Parliament so as to avoid relying upon the Executive
to carry out this task.
However,
we have serious reservations
about whether such an,
arrangement could work. In reality, the Parliamentary authorities at Westminster are not well
placed to make the judgement that the provisions of a Bill relate to devolved matters.
That,
information is more likely to be forthcoming through the Executive's contacts with Whitehall
Departments.
In particular the contacts between the Office of the Solicitor to the Scottish
Executive
and the Offices of the Solicitor to' the Secretary of State and the respective
draftsmen could be crucial in obtaining notice of legislation in these areas. In reality there is
little practical alternative to the Executive taking on the responsibility and to the Parliament
trusting it to carry this out properly.
15.
The First Minister is invited to agree that the Scottish Executive should give a
~:
~'""<
~
15.1
produce a memorandum for submission to the Scottish Parliament on any case:
.'~?
tP~ .. where it is proposed that the Westminster Parliament be invited to legislate on a' ~
~(\~
matter which falls within the devolved responsibilities;
4-.l~
i,
15.2
a ""ee=mitIpent
to augment that memoranduni
with further supplementary
(
memorandums
should there be changes to the legislation during its passage which
materially affects the extent to which it impacts on devolved matters;
)
15.3
to consider sympathetically any requests for a debate on such a memorandum
where the legislation involves substantive inroads into devolved matters, and in each
case to table a motion before the Parliamenrseeking
its consent to the legislation.
r--
Longer Term
U·._ ....
_H_
.. _
.
_~
~
__
~
-._
•••••
_.
__
._
•._ .• __
m
~
~
~
_
-------~-
------------
-------
-- -
.._------~--_.,-._---._-------------. __ .._-
16.
The First Minister was particularly concerned about the potential for a number of such
. proposals emerging eachyeat
and for the mischief that couldbecaused
as a result. We have ,.
been giving some further cQnsideration as to whether we can identify a better way forward
lhi01206.doc
17/06/199921:34
5
· DRAFT
21:34
which would minimise the need to enact provisions in Westminster legislation in devolved
j
areas.
17.
We think one possibility might be to taRea power in an Act of the Scottish Parliament
to allow such changes to be made by subordinate legislation.
18.
The First Minister will be aware that section 104 of the Scotland Act 1998 contains a
provision which would allow the UK Government to bring forward subordinate legislation
which may make such provision as is conSiderednecessary or expedient as a consequence of
any provision made by or under an Act of the Scottish Parliament. This provision is intended
to allow Westminster to agree any changes to the law as it applies.in England and Wales and
in reserved areas which arises out of an Act passed by the Scottish Parliament in a devolv~d ,
7e
miITorimage of such power might be very useful in the Scottish Parliament.
.
19.
It would allow Scottish Ministers to bring forward subordinate legislation subject to'
the approval of the Parliament which would make the necessary changes in devolved law,
arising as a consequence of legislation enacted at Westminster; For example, in the context:
oftlie Electronic Commerce :Bill·it would be .utmecessary to include provision allowing for:
the adoption of electronic signatures as probate in Scots law. Instead the DTI Bill could be
concerned totally with reserved matters and an appropriate Order would be brought forward
once that Bill was enacted making the necessary consequential amendments to Scots private
law to enable it to operate in Scotland.
[
\
' ..)
20.
Such an mangement is not, in practice, wildly different from what is proposed in the
Electronic
Commerce
Bill
which
itself
is
recommending
the
granting
of
a
subordinate-legislationmaking power to Scottish Ministers to make the changes. However, it
would be seen as more within the control of the Scottish Parliament and is likely, therefore, to
prove more acceptable to non-Executive parties.
~-----2L
__ :We
__
JÂ¥i1L-n~~(tto und!!take further ana~ysis of lhispossibility,
but our . first .,
-
__.
...__ .._._m _
..
"
.
.
.
consideration suggests that it would be within the legislative competence of the Scottish
Parliament to enact such a provision.Nev:erthel~ss, it~ould be nf?c~ssaryto consult with the
u.
Ihi01206.doc
17/06/199921:34
6
?
~.
, .•. DRAFT
21:34
(>-"'/
(
".
.f,..
_"
_~I' •.••".'
,e..~~
c..(~,.l
'.
.17"
UK. Government since it would clearly be seen by some as an extension of the existirl-g
., ')
i
constitutiona!l.~ttlem,ent, which it is not.
:/(-t .))
~---,...-
'22.
Is the First Minister content that we explore the possibility of introducing an A~t
of the Scottish Parliament to allow cross subordinate legislation to be made making such
a provision as they consider necessary or expedient in the consequence of any provision
made by or under an Act of the Westminster Parliament.
JOHN EWING
Executive Secretariat
Rm 047
SAH
it 4 0357
17 June 1999
--- -
~-----
~~ -- -~-- --
-----
.
---.--
Ihi01206.doc
17/06/199921:34
7
Document Outline
