Select Committee on Procedure Fourth Report



LEGISLATION

26. The Government has said:

"None of the devolution legislation affects the House's ability to pass legislation on any matter. For all public bills, the Government would expect that a convention would be adopted that Westminster would not normally legislate with regard to devolved matters without the consent of the devolved body. The Government is likely to oppose any private Member's bill which seeks to alter the law on devolved subjects in Scotland or Northern Ireland. It will remain a question of judgment for individual Members whether to introduce legislation on an issue which Parliament has already decided should be devolved, unless it is clear that the proposal has the support of the devolved body concerned".[53]

We support the principles behind this statement and agree that the House should not legislate on devolved matters without the consent of the legislature concerned. Such matters have been dealt with by convention in the past, and we expect such a convention to be established once more.[54] There is a grey area, in that the Welsh Assembly does not have the power to pass primary legislation; it may be that private Members' bills, on occasion, present legislation which the Assembly supports. In these cases, given the shortage of time available to the House, we agree that the Government should not automatically oppose such legislation.

27. It is possible that there will be legislation, or parts of legislation, relating solely to England, Northern Ireland, Scotland or Wales. It is most likely that there will be legislation relating solely to Wales, brought forward at the request of the Welsh Assembly. The Standing Orders currently allow legislation relating solely to Wales to be debated on second reading by the Welsh Grand Committee which, like second reading committees on United Kingdom bills,

has powers to recommend that the Bill be read or not read a second time and, if it recommends against the second reading of the Bill, to give its reasons. Bills relating solely to Wales may then be considered by a Standing Committee containing all Members sitting for Welsh constituencies.

28. However, the current standing orders do not deal satisfactorily with legislation relating exclusively to England, Northern Ireland or Scotland. Unlike ordinary second reading committees, the Scottish and Northern Ireland Grand Committees do not have power to do more than debate on a motion "That the Committee has considered the Bill in relation to its principle". No provision at all is made for bills relating exclusively to England. Indeed, Mr Maxton told us that there were no such things.[55] As the Scottish Affairs Committee said "there has not been more than one Parliament in Great Britain";[56] legislation relating exclusively to England may in future become a recognisable category. Although it is hard to envisage it at this stage, there may also be circumstances in which the Scottish or Northern Ireland Executive wishes Westminster to deal with legislation relating to Scotland or Northern Ireland; for example, if the interaction of devolved and reserved responsibilities made it necessary to legislate on reserved matters as they affected Scotland or Northern Ireland.

29. It is too early to tell whether legislation relating to a single part of the United Kingdom will be brought forward frequently. Some of our witnesses suggested that it would be best to decide on the approach to be taken in the light of experience; the current Standing Orders would suffice until it became clear that there was a need for change. In contrast Mr Moore suggested:

"I do think it would be a mistake to wait until it became a problem where perhaps Scottish MPs provided the majority for the governing party and then there would be a right royal rammy about what the right approach should be and I think that would be damaging both to Westminster and to the relationship with Scotland".[57]

It is useful to think about the broad principles here, even if decisions are delayed. The main point of principle to be considered is whether it is appropriate to retain special procedures for bills relating exclusively to one of the constituent countries of the United Kingdom, as currently apply to bills relating exclusively to Scotland or Wales. On balance we believe it is. There may soon be governments of different parties in different parts of the United Kingdom; party balances already differ in England, Scotland, Wales and Northern Ireland.

30. If special procedures are to apply to Bills relating solely to particular parts of the United Kingdom, there must be some way in which those bills are defined. Standing Order No. 97 (Scottish Grand Committee (bills in relation to their principle)) currently makes provision that

"97.—(1) After any public bill has been first printed, the Speaker shall, if of the opinion that its provisions relate exclusively to Scotland, give a certificate to that effect:

Provided that a certificate shall not be withheld by reason only that the bill—

(a)   makes minor consequential amendments of enactments which extend to England and Wales or Northern Ireland; or

(b)  amends Schedule 2 to the Parliamentary Commissioner Act 1967, Schedule 1 to the House of Commons Disqualification Act 1975 or Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975".

We recommend that the provision allowing the Speaker to certify Bills as relating exclusively to Scotland be transferred to a new Standing Order and adapted so that the Speaker may certify that a bill relates exclusively to one of the constituent parts of the United Kingdom.

31. Second reading debates on bills relating to Northern Ireland, Scotland or Wales could be taken in the Grand Committees; we do not think that this is a sufficient reason for retaining them. Instead, we prefer that such bills could be referred to a Second Reading Committee, and that such a committee should contain a minimum number of Members from the area concerned. The precise numbers may be a matter for further consideration; we suggest

  (i)  in the case of a Bill relating exclusively to England, a minimum of thirty-five Members representing English constituencies;

  (ii)  in the case of a Bill relating exclusively to Northern Ireland, all Members sitting for Northern Ireland seats;

  (iii)  in the case of a Bill relating exclusively to Scotland, a minimum of twenty members representing Scottish constituencies;

  (iv)  in the case of a bill relating solely to Wales, a minimum of twenty Members for Welsh constituencies.

Standing Committees (which include second reading committees) may contain between sixteen and fifty Members and the majority of Standing Committees are appointed in proportion to party strength in the House of Commons. This requirement will need to be lifted in respect of second reading committees on certified bills, as it currently is in relation to Scottish Standing Committees.

32. Although we anticipate that it would be usual for bills certified by the Speaker as relating solely to one of the constituent parts of the United Kingdom to be referred to a second reading committee, we do not recommend that such a referral should be automatic. It would be possible for a United Kingdom Government to introduce a bill to implement, say, the proposals of the Welsh Assembly, even though the House and the Assembly were not of the same political complexion. Moreover, since the Assembly (and the Scottish Parliament) will be elected every four years, there may be occasions when the Assembly will have a distinctly different balance from not only the United Kingdom Parliament as a whole, but from the group of MPs sitting for Welsh seats at Westminster. In such circumstances, the Government might expect to have to ask the House to override a recommendation from the second reading committee that a bill be not read a second time. The question on such a decision would be put forthwith. It would be possible to disapply the Standing Order to allow a debate on the Question, but, if this were done, the debate in the second reading committee would be duplicated. In this case it would be preferable for the arguments in favour of or against a certified bill being aired in a forum in which all Members of the House could participate. We consider that it should be usual for bills relating exclusively to England, Scotland or Wales to be considered by an appropriately constituted Second Reading Committee, but this should not be an absolute requirement. We further recommend that the provisions of paragraph (1) of Standing Order No. 90 (Second reading committees) should be amended to provide that any Member, not just a Minister of the Crown, should have the power to set down a Motion referring such a bill to a Second Reading Committee and that it should require a minimum of twenty Members to rise in their places to block such a Motion made by a private Member, as it does if a Minister makes it, rather than a single shout of 'object'.

33. The House's Standing Orders currently provide for Bills relating exclusively to Scotland to be dealt with by a Scottish Standing Committee which must be "so constituted as to include not fewer than sixteen Members representing Scottish constituencies".[58] Although in theory this provision could cut across the need to have regard to the composition of the House, it does not appear to have caused the Committee of Selection problems in the past. We recommend that Standing Committees on the Committee stage of bills certified by the Speaker under the new Standing Order should contain at least sixteen Members from the area concerned.

Money Resolutions

34. There is one technical matter to be addressed in relation to legislation affecting Wales; since the ultimate authority for incurring expenditure on new programmes in Wales will be legislation passed in Westminster, should bills containing such programmes require the authority of a Money Resolution? The argument against requiring such a Resolution is that an increase in the overall expenditure of the Welsh Assembly is not an inevitable result of an Act authorising new programmes; it would be open to the Assembly to reduce expenditure on other areas. However, as the Clerk noted:

"A similar question arose in relation to local authority expenditure when Parliament removed the statutory obligation on Ministers to have regard to the extent of local authorities' statutory powers and functions when determining the amounts of Revenue Support Grant to be paid to them. The Speaker then decided, in a private ruling, that a money resolution should nevertheless be required for any bill which implied an increase in the expenditure of local authorities, on the ground that, although there was no longer a necessary statutory connection between an extension of functions or services and an increase in the Revenue Support Grant, there was a reasonable expectation that, in practice, Ministers would have to take account of any such extension when determining levels of grant [59]".[60]

We recommend that Money Resolutions should be required for Bills which imply an increase in the expenditure of the National Assembly for Wales.

Private Legislation

35. The Scottish Parliament will deal with almost all private legislation relating to matters within the Scottish Parliament's competence. Westminster will continue to be responsible for private legislation affecting areas in Wales, but the Welsh Assembly will itself have the power to promote private bills. There were concerns that it might be thought possible for the Assembly to attempt to promote legislation applying to the whole of Wales as a private Bill. Erskine May states the principles to be followed in determining that a private Bill should not be allowed to proceed as such are:

(1)  the magnitude of the area and the multiplicity of the interest involved;[61]

(2)  that the bill proposes to amend or repeal public Acts. In these cases, the nature and degree of the proposed repeal or amendment have to be considered;[62]

(3)  that public policy is affected".[63]

These criteria clearly rule out the possibility of using the private legislation procedure as a means of initiating primary legislation of a public character for Wales as a whole.

Delegated Legislation

36. The Government does not propose any changes to delegated legislation procedure.[64] In a memorandum to the Joint Committee on Statutory Instruments it suggested:

"In cases where an instrument falls to be considered both at Westminster and in Edinburgh or Cardiff, best practice would suggest that it should be laid in all the chambers concerned at the same time, but this may not always be possible. In the case of affirmatives it will be for the relevant ministers and business managers to decide when the chambers will be asked to agree to the (draft) order. Obviously the JCSI stage at Westminster and the equivalent committee procedure in Edinburgh and Cardiff would have to be completed first. Some mechanisms for notification and co-operation will have to be developed. In such cases it may become sensible for the JCSI examination at Westminster to be undertaken before the equivalent procedure in Edinburgh or Cardiff. There is no reason why the debating stage of consideration (usually a standing committee at Westminster) always should be completed before or, alternatively, await consideration in Edinburgh or Cardiff. There may be particular cases where, depending on the substance of the instrument, it is thought best that proceedings should take place first in one chamber".[65]

That memorandum suggested that there should be consultation between Committees at Westminster and in Edinburgh or Cardiff to ensure that Scrutiny Committees did not disagree over vires. In our view this should not be a problem, although it is for the Committees concerned to decide the extent and nature of the consultation they consider desirable. There are two technical matters which we deal with below but otherwise, we endorse the Government's pragmatic approach to the procedures for dealing with delegated legislation. However if the Joint Committee on Statutory Instruments considers that changes in procedure on delegated legislation are necessary as a consequence of devolution, we would be happy to consider its proposals.

37. The first technical anomaly to be addressed is that the JCSI's orders of reference require it to consider "every general statutory instrument" not subject to proceedings in Parliament (except for Church of England measures).[66] This would appear to include any orders made by the devolved legislatures alone. This sits ill with the principle that in passing the legislation which underlies devolution, Parliament has agreed that certain powers and responsibilities should pass from it to the devolved legislatures, and we recommend that Standing Order No. 151 should be amended to exclude orders passed by the devolved legislatures alone from the JCSI's remit. Given the complexity of the Standing Order, it may be necessary to do this by a thorough redrafting, rather than attempt piecemeal change.

38. The second technical change to be made to Standing Order No. 151 (Statutory Instruments (Joint Committee)) concerns Orders in Council or draft Orders in Council made under paragraph 1 of Schedule 1 to the Northern Ireland Act 1974 which are excluded from the remit of the JCSI. Erskine May explains that this is "by reason of their character as effectively primary legislation".[67] Provision has been made for the Northern Ireland Act 1974 to be repealed by the Northern Ireland Act 1998, and, when this is done, this reference should be removed. We considered whether Orders in Council made under Section 85 of the Northern Ireland Act 1998 should be similarly excluded from the remit of the JCSI. The Order making power under the1998 Act is not restricted to matters which are effectively primary legislation, as was that described in paragraph 1 of Schedule 1 to the Northern Ireland Act 1974. Accordingly, orders made under Section 85 of the Northern Ireland Act 1998 should not be excluded from the remit of the Joint Committee on Statutory Instruments. It may be that the JCSI will wish to distinguish between Orders which have the effect of primary legislation and those which are properly delegated legislation; if so, we will return to the matter.


53  HC (1998-99) 148, Appendix 1, paragraph 15. Back
54  Evidence p 127. Back
55  Q 178. Back
56  HC (1997-98) 460; para 10. Back
57  Q 216. Back
58  Standing Order No. 86. Back
59  Erskine May, 22nd edition, pp 765-6. Back
60  Evidence p 122. Back
61  HC Deb (1938-39) 343, cc 950-954; ibid (1979-80) 977, c 1100. Back
62  Parl Deb (1859) 30, c 708; ibid 38, c 335. Back
63  Erskine May, 22nd edition, p 853. Back
64  HC (1998-99) 148, Appendix 1, paragraph 14. Back
65  27th Report of Session 1997-98, HC 33 xxvii, Appendix 1, Paragraph 36. Back
66  Standing Order No. 151. Back
67  22nd edition, p 596. Back

 
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