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Preparation of primary legislation: approach of the UK Government

• In accordance with the Sewel Convention (now set out in the Memorandum of Understanding on devolution, paragraph 13) the Government will not normally invite the UK Parliament to legislate with regard to devolved matters except with agreement of the relevant devolved legislature.
• There are a number of reasons why it may be appropriate for Parliament to legislate in devolved areas – for example some bills on non-devolved matters will not work effectively without making provision in areas that are devolved, or it may be most convenient for Parliament to implement EU or international obligations in a single instrument. In these cases a Legislative Consent Motion (informally known in the Scottish context as a “Sewel Motion”) is needed in the legislature concerned.
• This principle applies to devolved matters in respect of Scotland. It applies to transferred matters in respect of Northern Ireland. In respect of Wales, it applies to matters within the legislative competence of the National Assembly for Wales (determined by reference to Part 1 of Schedule 5 to the Government of Wales Act 2006).
• Primary legislation for Wales has until recently been made at Westminster. New arrangements are now in place for Wales. Briefly:
• since 2007, the Assembly may acquire powers to legislate (by ‘Measure’), on matters that fall within Part 1 of Schedule 5 of the Government of Wales Act 2006. Matters may be inserted in that Schedule by Order in Council – a Legislative Competence Order – under section 95 of the 2006 Act: such Orders must be approved before making both by the Assembly, and by Parliament. Guidance on conferring legislative competence on the Assembly is to be found in Devolution Guidance Note 16.
• Since the Better Governance for Wales White Paper in 2005 it has been Government policy where appropriate to confer on the Assembly powers to legislate in the area covered by the Bill. These are called framework powers, and again operate by amending Schedule 5. Primary legislation covering England and Wales has continued to make specific provision for Wales where appropriate, which has included conferring new functions on the Welsh Ministers (including regulation-making powers). Guidance on including Welsh provisions in UK Bills, including framework powers, is set out in Devolution Guidance Note 9.
• Further guidance in respect of Northern Ireland is in Devolution Guidance Note 8, and in respect of Scotland in Devolution Guidance Note 10.
• UK Departments preparing Bills need to be alive to the possibility of a Legislative Consent Motion being necessary in one or more of the devolved legislatures. They should be aware that this can be a complex process and they must ensure that they allow adequate time for the devolved administrations to consider the issues fully. In all cases, early contact with relevant territorial offices is advisable. A similar approach should be taken in relation to bills which are due to be published in draft and for Private Members Bills that are supported by the UK Government. Devolution issues should be resolved by the time a Bill is brought before the Legislation Committee prior to its introduction in Parliament. Departments should address promptly the devolution implications of possible amendments during the Parliamentary passage of a Bill.