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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