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Last updated: 08 July 2009
See also Explanatory Notes, Territorial Extent and application
15.1 The Memorandum of Understanding between the UK Government and the devolved administrations says:
“The United Kingdom Parliament retains authority to legislate on any issue, whether devolved or not. It is ultimately for Parliament to decide what use to make of that power. However, the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government.”
15.2 This statement has different meanings for each of the devolution settlements, as each devolution settlement has different characteristics and gives different powers to the legislatures in question. The devolution settlements are complex and this chapter provides only a general introduction. Bill teams are strongly advised to study carefully the more detailed Devolution Guidance Notes on handling legislation applying to Scotland, Wales and Northern Ireland at Devolution guidance notes [External website] (DGN 8, 9, and 10).
15.3 With the help of the Scotland, Wales and Northern Ireland Offices, Bill teams must identify at an early stage whether the provisions of the Bill relate to reserved or devolved matters in each part of the UK, and ensure that the devolved administration in question shares their understanding of this. If the provisions relate to devolved matters, they should then consider whether the Government's preferred position would be to legislate for England only, or to seek to extend the provisions to other parts of the UK, bearing in mind that this would require a Legislative Consent Motion to be passed in the relevant devolved legislature.
15.4 By the time the Bill comes to Legislation Committee for approval for introduction, the department must be in a position to state whether the provisions of the Bill will apply to England only, to England and Wales, to England and Wales and/or Scotland and/or Northern Ireland, or to the whole of the UK. Different provisions within the same Bill may have different territorial extent.
15.5 If the Bill extends to Scotland, Wales or Northern Ireland, the Committee will wish to know whether it deals with matters which are wholly a UK responsibility or whether it has other implications for the devolved legislatures and/or administrations – for example it may extend their powers or duties. If provisions extending to one or more of the devolved administrations touch on matters that are devolved, the Committee will also wish to know that the devolved administration has agreed in principle to sponsor a Legislative Consent Motion once the Bill is introduced (the devolved administration cannot table an LCM until the Bill in question has been introduced at Westminster).
15.6 “Agreement in principle to sponsor a Legislative Consent Motion” means that the UK Bill Minister will have written to his/her counterpart in the Scottish Parliament, Welsh Assembly or Northern Ireland Assembly seeking agreement; the Minister in the devolved administration will have consulted with their colleagues and reached collective agreement to the proposal; and this has been confirmed in writing to the UK Bill Minister.
15.7 If the Bill, or part of the Bill, deals with devolved matters, Legislation Committee will expect the devolved administrations concerned to have been consulted and any necessary agreements obtained in good time. The clear expectation of the Committee is that devolution issues are resolved by the time the Committee considers whether a Bill is ready for introduction, so that the progress of legislation at Westminster is not delayed.
15.8 Legislation Committee will not generally be willing to delay introduction of a Bill because of delays in reaching agreement with a devolved administration. Delays in the introduction of Bills impacts across the whole programme, and provisions to extend the territorial extent of the Bill or to confer framework powers on Welsh Assembly Government Ministers may not normally be added by amendment.
15.9 Therefore it is important not only that engagement with the devolved administration takes place from an early stage, but also that the Bill team/department decides on a “default position” should they be unable to reach agreement with a devolved administration. This might mean having a clear view of what a Bill could look like with devolved provisions excised from it.
15.10 Where a Bill, whatever its subject matter, will extend to Scotland, Wales or Northern Ireland, departments should keep in mind the need to consult relevant interest groups in those parts of the UK, including in particular the judiciary in Scotland and Northern Ireland, on the same basis as their equivalents in England and Wales. Again, the detailed guidance covers such points.
15.11 Bill teams should work closely with the Scotland, Wales and Northern Ireland Offices the Territorial Offices) from an early stage to manage devolution issues effectively. This could include sharing detailed policy intent and drafting instructions for Bills, to ensure that the Territorial Offices have the clearest possible sense of the proposed legislation in order to fully assess the devolution impacts. In general, to facilitate a coordinated approach, unless there is an existing working relationship departments should consult the relevant Territorial Office before making initial contact with the devolved administration about a Bill.
15.12 The Government should then work closely with the devolved administrations to agree the boundaries between matters for which the Government remains responsible and matters for which the devolved administrations are responsible. If differences of interpretation arise, Bill teams should inform the relevant Territorial Office immediately.
15.13 Even if the Bill does not appear to have any obvious devolution implications, it is very important that Bill teams discuss the provisions with the Territorial Offices at an early stage, to confirm that this is the case. In particular, while a Bill might not deal substantially with devolved matters, it may touch on devolved matters and this may still result in the need for a Legislative Consent Motion.
15.14 Departments should also note that amendments made while a Bill progresses through Parliament may have implications for the devolved legislatures, and should do their utmost to ensure that they are consulted and agreement obtained when appropriate.
15.15 The devolved administrations are not part of the Westminster decision-making process and Cabinet Committee correspondence or papers should not be copied to them, though Ministers may write to colleagues in the devolved administrations in similar terms. The Devolution Secretariat in the Cabinet Office can advise on protocols in corresponding with the devolved administrations, as well as on wider issues relating to managing relations with the devolved administrations.
15.16 Legislation Secretariat in the Cabinet Office should also be kept informed of any devolution issues in Bills.
15.17 Under the Sewel Convention it has been agreed that the UK Parliament will not normally legislate on matters devolved to the Scottish Parliament or vary the executive competence of the Scottish Ministers without the consent of the Scottish Parliament. This applies to provisions which legislate for a devolved purpose; or which vary the competence of the Scottish Ministers; or which vary the powers of the Scottish Parliament. Such consent is achieved through the agreement of the Scottish Parliament to a Legislative Consent or “Sewel” Motion, promoted by the Scottish Executive.
15.18 Where it is proposed to include provisions falling with the terms of the Sewel Convention in a UK Bill, the Parliamentary and Constitutional Division of the Scotland Office should be consulted in the first instance. It is critically important that discussions are opened on possible Legislative Consent Motions at an early stage. Any such proposals must be agreed to collectively by the Scottish Ministers, who, if they agree to the tabling of a motion, will (once the Bill is introduced at Westminster) lay a motion before the Scottish Parliament, together with a detailed Memorandum on the contents of such provisions.
15.19 The agreement of the Scottish Parliament should be sought in advance of the final amending stage of a Bill in the first House at Westminster so that, should the Scottish Parliament not wish the UK Bill to include provisions engaging the Convention, the Government can then (subject to collective agreement) table amendments excising those provisions.
15.20 Amendments made during Parliamentary proceedings may trigger the need for a Legislative Consent Motion for a Bill that previously covered only reserved matters. The same procedure as described above for securing the agreement of the Scottish Executive would then apply, but would need to be accelerated. As such amendments are likely to impact upon the handling and passage of a Bill, departments should discuss any such proposals at an early stage with Legislation Secretariat and the Scotland Office in the first instance.
15.21 A Convention is also in place on respecting the treatment of the Welsh devolution settlement in legislation while safeguarding the interests of the Government. This applies when Bills make provision specifically on matters within the areas where the National Assembly has legislative competence or the Welsh Ministers have executive functions.
15.22 Provisions varying the functions of the Welsh Ministers or that add to the legislative competence of the Welsh Assembly require the collective agreement of the Welsh Ministers to be included in a UK Bill. Provisions that have a negative effect on the legislative competence of the Assembly or which are within the legislative competence of the Assembly require the agreement of the Welsh Ministers and subsequently of the National Assembly for Wales itself in a Legislative Consent Motion.
15.23 Legislation Committee expects the agreement of Welsh Ministers to the inclusion of the provisions to have been obtained by the time a Bill comes before the Committee prior to introduction. Where the agreement of Welsh Ministers to promote the relevant Legislative Consent Motion in the Assembly is also required, this should also have been obtained by the time the Bill comes before Legislation Committee prior to introduction.
15.24 Legislation Committee would then expect the Assembly to have debated the motion before the Bill reaches its final amending stage in the first House at Westminster – so that there is still an opportunity for the provision to be removed from the Bill by amendment if the Assembly does not agree.
15.25 Under the Government of Wales Act 2006, the UK Parliament can confer legislative competence on the National Assembly for Wales to pass legislation, known as Assembly measures. An Assembly measure can do anything an Act of Parliament can do, within the general constraints of the Government of Wales Act and the scope of the legislative competence granted.
15.26 Legislative competence can be granted by separate order in council at any point in the year or by way of provision in UK Bills, where such provisions are known as framework provisions. This will usually originate in a request from the Welsh Assembly Government to the relevant UK Government department, which will then need to liaise with colleagues in the Wales Office about whether to meet the request and if so how to take it forward in line with the clearance procedures set out above.
15.27 Where a UK Bill contains a framework power for Wales, the Bill team together with the Wales Office must prepare an Explanatory Memorandum setting out its effect. This must be circulated to the relevant policy Committee of Cabinet alongside the request for collective agreement to the policy in the Bill, and provided to Legislation Committee when it considers the Bill before introduction. It should then be made available to MPs/Peers and Welsh Assembly Members when the Bill is published.
15.28 The Secretary of State for Wales has made a commitment that where UK Bills extend framework powers to Wales, he will hold a briefing session on the provisions after introduction of the Bill but before Second Reading. Bill teams should seek advice on this from the Wales Office.
15.29 A similar convention applies when legislation makes provision specifically for a transferred (i.e. devolved) purpose or which alters the legislative competence of the Northern Ireland Assembly or which alters the executive functions of Northern Ireland Ministers or departments. It does not apply when legislation deals with transferred matters only incidentally or consequentially upon provision made in relation to a reserved or excepted matter.
15.30 As with provisions relating to Scotland and Wales, if it is proposed that the Bill extend to Northern Ireland where the matter in question is transferred to the Northern Ireland Assembly, then by the time the Bill comes before Legislation Committee prior to introduction the Committee will expect Northern Ireland Ministers to have collectively agreed to promote a Legislative Consent Motion in the Assembly. The Assembly will then be expected to give its view on whether provisions should be included in the UK Bill before the final amending stage in the first House at Westminster.
15.31 Departments should work closely with the Northern Ireland Office and Northern Ireland departments to ensure the smooth delivery of any agreements necessary with the devolved administration, particularly in the field of criminal justice where it is proposed to transfer a number of additional powers to the Northern Ireland Assembly.
Devolution implications of Bills to be published in draft
15.32 The same principles apply where a Bill is being prepared for publication in draft. The Bill Team should discuss the proposed provisions with the three Territorial Offices as early as possible, so that discussions with the devolved administrations can start in good time with the aim of reaching an agreed position before publishing the Bill in draft.
15.33 It is preferable to reach an agreed position before publishing the Bill in draft. However, if the devolution issues prove complex and threaten to significantly delay publication of the draft Bill, it may be possible to publish the Bill in draft stating that the devolution issues remain to be resolved through discussion with the devolved administrations. Publication in draft may of itself help to resolve any outstanding issues.