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From: K A L Thomson
PS/Secretary of State
8 July 1998
Mr R Gordon
Copy to:
PS/Mr McLeish
PS/Mr Wilson
PS/Lord Sewe1
PS/Mr MacDonald
PS/Mr Galbraith
PS/Permanent Secretary
PS/Departments
Solicitor
Mr E Ferguson
Mr Grice
Mr Ewing
Mr Walford
Mr I Jamieson
Parliamentary Clerk
Mr Elder
Ms Alexander
Mr Whitton
SCOTLAND BILL: SCOTTISH LEGISLATION AT WESTMINSTER
The Secretary of State has seen your minute of 11 June and PS/Mr MacDonald's
minute of
16 June.
He discussed the approach proposed for the Foods Standards Agency with you.
For the
record, he was content to adopt the procedure described in paragraph 19 of your minute.
He was also content to agree that:
there should not be any provision in the Scotland Bill requiring Westminster
to
consult the Scottish Parliament on the terms of legislation but that such consultation
should be achieved administratively (paragraphs 7 and 22.1 of your minute);
all future Westminster legislation touching on devolved matters should include a
provision· deeming. it to be a pre-commencement
enactment for the purposes of the
Scotland Act (paragraphs 16 and 22.3 of your minute); and
to write to the Lord Chancellor in the terms circulated previously (paragraph 23 of
your minute).
HSB00307.078L
You also asked (paragraph 12) for a steer on what, if any, of the legislative proposals set out
in the Annex to your minute Ministers would be content to defer in order to avoid
pre-empting the Scottish Parliam~nt. The Secretary of State sees the logic in the argument for
having no, or only an.irreducible minimum, of legislation in devolved areas in the 1998-99
session. He believes, however, that the Government must continue to take decisions on the
promotion of legislation, as in other areas, on the merits of the case in question, and he does
not relish the prospect of making the argument that devolution should mean that highly
desirable legislation should be deferred. In particular, he thinks that Ministers will think it
highly desirable, for political as well as policy reasons, to legislate on the NHS, water
charges, and the modernisation of local government. He agrees with Mr MacDonald's
comments on the latter.
The Secretary of State would therefore wish to keep all his
)
legislative options
open, and to consider the case for deferring legislation on the merits of
individual legislative proposals as those decisions fall to be considered.
)"
(
K A
L THOMSON
PS/Secretary of State
8 July 1998
HSB00307.078L
You wrote to Derry Irving on 19 June, 1998 and copied to DSWR colleagues,
seeking agreement to proposals for handling Westminster legislation on devolved
matters.
On your proposal for a constituti~mal convention, I agree that a flexible
framework
is needed in dealing with ,the very different, circumstances that may
be associated with each Westminster legislati..-e proposal that may affect
devolved matters. A non-statutory
consultation mechanism would provide this. I
am therefore content to accept that concordats, and administrative arrangements
offer the best way forward.
However, it will be necessary to assure consistency
c of approach, since concordats are to be developed bilaterally between the
Scottish Administration
and each between UK Government department.
A
common understanding of the principles that
should guide dev,lopment
of the'
consultation
arrangements, agreed by officials, may do the trick .
.
I
The general approach you have set out to ensure consistency between
Westminster
legislation and the Scotland Act seems acceptable so long as it is
applied on a case-by-case basis according to the purpose of each particular
Westminster
legislation. Essentially therefore, if future Westminster legislation
provides Ministerial functions which would impact on devolved matters, the
legislation would be drafted to include a provision deeming it a pre-
commerlcement
enactment for purposes of the Scotland Bill. This should allow
automatic transfer to Scottish Ministers, under clause 49, so far' as the
func~ions are exercisable within devolved competence.
ps03july,01
; 06 JUL'98
09: 42
DOH5 OF 5
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My Department is leading on two of the Bills ,which will be immediately affected
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by this provision, I.e. the NHS (Amendment
Bill) and the Foods Standards
Agency Bill (with MAFF). My officials are in touch with yours on these Bills.
Their experience so far 'suggest-s' that Y9ur proposals provide a practical way
forward, including the restructuring
of the FSA into 8 cross-border public
authority,
in so far as it has functions
in Scotland which do not relate to
reserved matters.
Copies of this letter are being sent to the Prime Minister, members of DSWR and
' '
to Sir' Richard Wilson.
)
~~L-
FRANK DOBSON
c
TIiE SCOTTISH OfFICE
DOVE.R HOUSE
WHITEHALL
LONDON SW1A ZAU
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'--~
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RESTRICTED ~POLICY
C~~v
The Rt Hon Lord Irvine of Lairg
CC...,.,..,j'
"",c.~,""",,:~
Lord Chancellor
House of Lords
E~_
~.-...
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LONDON
SWIA OPW
1'1 June 1998
FUTURE
LEGISLATION
AT WESTMINSTER ON DEVOLVED
MATTERS
IN
SCOTLAND
~
This letter is about the handling of Westminster legislation on devolved matters
in the
1998/99 parliamentary
session and beyond.
I set out our thinking below and would be
grateful for colleagues' agreement to what 1propose.
The constitutional
convention
Clause 27(7) of the Scotland am makes it clear that the devolution of legislative power to the
Scottish Parliament
does not affect Westminster's abilitY to legislate for Scotland, even in
relation to devolved matters.
~deed the White Paper (paragraph 4.4) envisaged that there
could be instances where it would be more convenient for legislation on devolved matters to
be passed by the UK Parliament.
As happened in Northern Ireland, earlier in the century, we
expect a convention to be established that Westminster will not normaUy legislate with regard
to devolved matters without the consent of the Scottish Parliament.
A similar mechanism
may be needed where Ministers of the Crown exercise power by subordinate legislation to
give effect to community law in relation to a devolved matter in Scotland.
It might be argued that this convention ought to ·be given effect in the Scotland Bill by
providing
for some form of statutory consultation mechanism
between the Parliaments.
However in practice it would be very difficult to lay down in advance any precise rule as to
when and how consultation
should take place because circumstances will vary so widely.
TCROSI06.068
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Thus I propose that it should be left to the UK Government and the Scottish Administration
to keep in close touch through concordats and other administrative arrangements about
legislative proposals, and for the Scottish Administration to decide how to consult the
Scottish Parliament on plans for Westminster to legislate about devolved matters .
•...-
"?':.;.....
Consistency between Westminster'Legislation
and the Scotland Act
The question of how the constitutional convention should be applied in practice will arise
immediately after the Scottish Parliament comes into operation on I July 1999 as we have
proposed and the other parties seem likely to agree. Subject to decisions aQout next session's
legislative programme it is possible that on 1 July a number of Westminster Bills which relate
in part to devolved matters in Scotland will be proceeding through Parliament.
We need to
. ensure consistency between Westminster legislation on devolved matters and the provisions
of the Scotland Bill, both in 1998/99 and in future sessions.
Thus, for example, if it is
proposed in future to confer functions upon Scottish Ministers under Westminster legislation,
it would be important to ensure that those functions are conferred so as to be exercisable
within devolved competence within the meaning of clause 50 of the Scotland Bill.
This is a matter which I understand is Wlder active consideration by Parliamentary Counsel.
Their present advice is that the best way of achieving consistency would be for Westminster
legislation to be dmfted in terms of conferring functions upon Ministers of the Crown and
then for those functions, so far as they are exercisable within devolved competence. to be
transferred to Scottish Ministers by virtue of the Scotland Bill. As clause 49 of that Bill is at
present drafted in tenns of those statutory functions being transferred to Scottish Ministers if
they are conferred upon Ministers of the Crown in a pre-commencement
enactment (ie an
enactment passed' before or in the same session as the ~m)7 Parliamentary Counsel have
advised that this will mean that any Westminster legislation on devolved matters, in 1989-99
and beyond, will require to include provision for it to be treated as 'a pre-comin~cement
enactment for the purposes of the Scotland Bill.
Ministerial functions would then be
transferred automatically to Scottish Ministers through clause 49 so far as exercisable within
devolved competence.
If:future
Westminster legislation established a cross-border public authority, such as the
proposed Food Standards Agency. which is discllSsed in more detail in the Annex to this
letter, then a provision in the Westminster legislation providing that it should be treated as a
pre-:COmmencernentenactment for the purposes of the Scotland Bill would mean that such an
authority may be designated as such and may then be reconstructed through the provisions in
clauses 84 and 85 of the Scotland Bill in the same way as an already existing cross-border
..
public authority could.
TCR05106.068
I would be grateful to know if colleagues are content with this approach.
I am copying this letter to the Prime Minister, members of DSWR and to Sir Richard Wilson.
•...-
~,
TCR05106.068
THE SCOTTISH OFFICE
DOVER HOUSE
WHITEHALL
LONDON SW1A ZAU"~"
RESTRICTED - POLICY
The Rt Hon Lord Irvine of Lairg
Lord Chancellor
House of Lords
LONDON
SWIA OPW
,q june 1998
FUTURE .LEGISLATION
AT WESTMINSTER
ON DEVOLVED
MATTERS
IN
SCOTLAND
This letter is about the handling of Westminster legislation on devolved matters in the
1998/99 parliamentary session and beyond. I set out our thinking below and would be
grateful for colleagues' agreement to what I propose.
The constitutional convention
Clause 27(7) of the Scotland Bill makes it clear that the devolution of legislative power to the
Scottish Parliament does not affect Westminster's ability to legislate for Scotland, even in
relation to devolved matters. Indeed the White Paper (paragraph 4.4) envisaged that there
could be instances where it would be more convenient for legislation on devolved matters to
be passed by the UK Parliament As happened in Northern Ireland, earlier in the century, we
expect a convention to be established that Westminster will not normally legislate with regard
to devolved matters without the consent of the Scottish Parliament
A ~imilar mechanism
may be needed where Ministers of the Crown exercise power by subordinate legislation to
give effect to community law in relation to a devolved matter in Scotland.
It might be argued that this convention ought to be given effect in the Scotland Bill by
providing for some form of statutory consultation mechanism between the Parliaments.
However .inpractice it would be very difficult to lay down in advance any precise rule as to
when and how consultation should take place because circumstances will vary so widely.
TCROS106.068
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Thus I propose that it should be left to the UK Government and the Scottish Administration
to keep in close touch through concordats and other administrative
arrangements
about
legislative
proposals,
and for the Scottish Administration
to decide how to consult the
)
Scottish Parliament on plans for Westminster to legislate about devolved matters.
Consistency
between Westminster
Legislation and the Scotland Act
.~/"-
"(,"
The question of how the constitutional
convention should be applied in practice will arise
J"",
immediately
after the Scottish Parliament comes into operation on 1 July 1999 as we have
proposed and the other parties seem likely to agree. Subject to decisions about next session's
legislative program.ine it is possible that on 1 July a number of Westminster Bills which relate
in part to devolved matters in Scotland will be proceeding through Parliament:
We need to
ensure consistency between Westminster legislation on devolved matters and the provisions
of the Scotland Bill, both in 1998/99 and in future sessions.
Thus, for example, if it is
proposed in future to confer functions upon Scottish Ministers under Westminster legislation,
it would be important to ensure that those functions are conferred so as to be exercisable
within devolved competence within the meaning of clause 50 of the Scotland Bill.
This is a matter which I understand is under active consideration by Parliamentary Counsel.
Their present advice is that the best way of achieving consistency would be for Westminster
legislation to be drafted in terms of conferring functions upon Ministers of the Crown and
then for those functions, so far as they are exercisable within devolved competence, to be
transferred to Scottish Ministers by virtue of the Scotland Bill. As clause 49 of that Bill is at
~>
present drafted in terms of those statutory functions b~ing transferred to Scottish Ministers if
they are conferred upon Ministers of the Crown in a pre-commencement
enactment (ie an
enactment passed' before or in the same session as the Bill), Parliamentary
Counsel have
advised that this will mean that any Westminster legislation on devolved matters, in 1989-99
and beyond, will require to include provision for it to be treated as a pre-commencement
enactment
for the purposes
of the Scotland Bill.
Ministerial
functions would then, be
transferred automatically to Scottish Ministers through clause 49 so far as exercisable withiri.
devolved competence. "
If future Westminster
legislation
established a cross-border public authority, such as the
proposed Food Standards Agency, which is discussed in more detail in the Annex to this
letter, then a provision in the Westminster legislation providing that it should be treated as a
pre-commencement
enactment for the purposes of the Scotland Bill would mean that such an
authority may be designated as such and may then be reconstructed through the provisions in
clauses 84 and 85 of the Scotland Bill in the same way as an already existing cross-border
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TCR05106.068
iwould be grateful to know if colleagues are·content with this approach.
I am copying this letter to the Prime Minister, members ofDSWR
and to Sir Richard Wilson.
TCROSI06.068
Document Outline
