Select Committee on Constitution Fifteenth Report

Devolution: Its Effect on the Practice of Legislation at Westminster

Introduction

1.  In December 2002 we published a report on Devolution: Inter-Institutional Relations in the United Kingdom.[1] Chapter 4 of that report considered inter-parliamentary relations, and in particular the processes for legislating for Wales and Scotland. In the two years since, and in the course of our regular scrutiny of Government bills introduced to the House, it has been apparent that bills dealing with public service or regulatory matters often include provision for legislation specific to one or more of the devolved administrations. We became concerned that, at least in some respects, legislation at Westminster might have become more and not less complicated since 1999, when the Scottish Parliament and the National Assembly for Wales came into being. The appearance of greater complexity has arisen particularly in the case of bills that, notwithstanding devolution, create new public bodies to enable common policies to be applied throughout the various parts of the United Kingdom. We therefore decided, as a follow-up to the earlier inquiry, to invite Professor C M G Himsworth (of the School of Law at Edinburgh University) to conduct research into the issues involved, in order to ascertain whether our perceptions had any basis in fact. We are very grateful to him for the comprehensive paper he prepared, which can be found at Appendix 1.

2.  Professor Himsworth's paper deals with matters of considerable technical complexity. In explaining them, the paper distinguishes between matters that have historically been a cause of complexity in legislation and those that have been created or intensified as a result of devolution. The latter tend to confirm the concerns referred to above, and raise the question of whether the post-devolution complexities are an unavoidable consequence of the present asymmetric scheme of devolution, or whether it would be possible within that scheme to simplify their effect. In doing so, it brings together a good deal of informative material that addresses the original concern of the Committee in this area, and casts a helpful light on the difficulties that are currently encountered in the legislative process. Paragraphs 3 to 16 below summarise the main findings in the paper (in this summary, references to paragraphs are to the paragraphs in Professor Himsworth's paper).

General Principles

3.  It is important to keep in mind the overarching principle that Westminster retains full authority to legislate for all parts of the United Kingdom (para 4), notwithstanding the varying extent of devolution of legislative powers to Scotland, Wales and Northern Ireland. The effect of devolving legislative competence upon Scotland and Northern Ireland is indeed to reduce the pressure on Westminster for primary law-making time (para 5). Even so, Westminster still in various ways legislates for matters that are devolved, notably for Scotland when the Scottish Parliament gives its consent under the "Sewel convention", which is seen as comparable with the practice at Westminster during the Stormont years of 1922-1972 (para 6), and is likely to continue (paras 11-12). In the present session at Westminster, at least eleven bills have made Sewel resolutions necessary (para 12).

4.  The position is different for Wales, since primary legislative powers are not devolved and Westminster legislation is required even where bills relate only to Wales (para 7). In the future there may be changes in this position, as recommended by the Richard Commission (para 8). One aspect of the present position is the formal pre-legislative obligation of the Secretary of State for Wales to consult with the Assembly regarding the Government's legislative programme (para 13). The paper, following the Richard Commission and other commentators, stresses the importance of this opportunity since the Assembly looks to Westminster to promote its legislative aims. Some United Kingdom departments have found it difficult to adapt to the new complexities of devolution (para 16). Despite the difficulties, some of the Assembly's bids for primary legislation have succeeded (para 17). In the case of primary legislation for Wales, it is of particular importance that there should be pre-legislative scrutiny of draft bills (para 19). It is equally important, in this context, that the territorial application of all Government bills should be clearly stated in Explanatory Notes (para 20). The paper sets out the "Rawlings Principles" that the Assembly has resolved should be observed in the preparation of Government bills at Westminster that affect the Assembly (para 21).

Territorial Extent

5.  The question of whether a Government bill at Westminster should apply to all or only a part (or parts) of the United Kingdom raises issues both of substance and of process. One specific aspect relates to the "extent clauses" that appear in bills to indicate the territorial application that a bill may have (paras 22-26). While the issue is not new, it has become more complex since 1999. The practice established long before 1999 was based on the assumption that the United Kingdom comprised three territorial jurisdictions (legal systems), namely England and Wales; Scotland; and Northern Ireland. In the case of Scotland, the practice before 1999 depended on the post-Union tradition whereby Westminster recognised and sought to maintain the distinctive existence of the Scottish legal system. Since 1999 this has been reinforced by the demands of devolution. Formerly, use of the single expression "the Secretary of State" in a Westminster Act dealing with matters of domestic administration in Great Britain would be sufficient to enable the Act to be administered in Scotland by the Secretary of State for Scotland where the subject-matter came within the scope of the then Scottish Office (for instance, matters affecting local government): but since 1999 the allocation of powers to the Scottish Ministers has to be ensured by specific provision.

6.  The term "England and Wales" customarily refers to a single legal jurisdiction. Given this, the paper notes, "there can be no separate designation of Wales to define the extent of an Act. No Bill or Act may formally extend to Wales alone". Examples of recent Acts concerned solely with Wales to which this applies include the Children's Commissioner for Wales Act 2001 and the Health (Wales) Act 2003. In this respect, the status of Wales is the same as that of a local authority area or region of England. While pressure for a change in the status of Wales for this purpose has been felt (an example mentioned is the approach taken by the Civil Contingencies Bill in recognising the four "parts" of the United Kingdom), the conclusion is that "for the time being, it is the existing rules and practice which will continue to apply" (para 25). In short, the need to ensure the "correct" definition of the extent of a bill has been intensified by the devolution settlement.

7.  Now that the devolved administrations exist, Westminster may directly confer powers upon them (para 27). This was initially achieved in the case of Scotland through an artificial device used for some time after 1998 of vesting powers in "the Secretary of State," but then to deem the Act to be a "pre-commencement enactment". This was designed to ensure that it would be retrospectively caught by the Scotland Act provision for devolving the Secretary of State's powers upon the Scottish Ministers (para 28). The preferred approach today is to confer such powers directly (para 29).

8.  In the case of Wales, the method initially used for conferring functions on the Assembly was by means of Orders in Council transferring them from the Secretary of State: but the preferred method now is by primary legislation extending to Wales (paras 30, 31). In a very few cases, this has been done in an Act applying exclusively to Wales; but generally it is done in a part of an Act applying also to England, sometimes accompanied by a declaration that the powers have been vested by Order in Council so as to facilitate future amendment in the same manner. Provisions conferred by such legislation are very often subject to requirements of consultation or consent as between the Assembly and the Secretary of State (para 31).

9.  Both as regards Scotland and Wales, the choices made as to the methods for devolving powers have been criticised as complicated and difficult to understand (para 32). The position would change if broader legislative powers were conferred on Wales. The Civil Contingencies Bill illustrates the manner in which executive authority is subject to various forms of consultation and consent in different parts of the United Kingdom (para 33).

Non-Departmental Public Bodies

10.  Particular difficulties exist in Scotland in relation to the creation of non-departmental public bodies, since acute issues concerning the category of "cross-border public authorities" have arisen as to the scope of devolution. These difficulties relate to the territorial border in the case of bodies that have functions in both Scotland and elsewhere; to the border-line between devolved and reserved functions; and to the fact that the devolved Scottish local authorities exercise some powers on matters that are reserved (paras 34-36). Various methods exist for ensuring both that the legislative competence of the Scottish Parliament remains in place and that reserved interests are not prejudiced (para 36).

11.  A series of questions arises in relation to these non-departmental public bodies, but "the provision of answers has been one of the most problematic areas of post-devolution legislation" (para 38). Such questions include the effect of legislation by Westminster upon the competence of the Scottish Parliament; the need for the powers of the body to vary from one part of the United Kingdom to another; and provisions as to appointment, financing, reporting to Parliament, redress of grievances etc. One example of such a body created since devolution is the Food Standards Agency (1999). Another is the Health Protection Agency (2004), which exercises a complex combination of functions (in part relating to infectious diseases, and in part to radiation hazards) that include functions that are mainly devolved as well as functions that are reserved (paras 39-40). A range of different issues is raised by the Children Bill (paras 41-43). The House of Lords rejected the Government's proposal of a Commissioner for the United Kingdom in favour of a Commissioner for England, but the Government intends to reverse that in the Commons.

Legislative Authority

12.  Other questions arise as to the granting of legislative authority for repealing, amending and consolidating previous legislation (paras 44-45). These questions include the need (in the case of Scotland) to ensure that such changes in existing legislation made by Westminster do not trespass upon devolved legislative powers and (in the case of Wales) to determine whether the delegated legislative powers should be exercised by the Secretary of State or by the Assembly. Somewhat similar problems arise in relation to the making of commencement orders (paras 46-48), where one possible solution is to specify procedures for consultation and consent.

13.  Questions as to how Bills with a territorial dimension should be handled in Parliament have either been accentuated or have had to find new solutions since 1999 (paras 49-55). One effect of devolution is, indeed, that there are fewer bills at Westminster applying solely to Scotland. But problems still arise as to what should be the Westminster procedures in respect of bills (covered by a Sewel resolution) that contain clauses applying to Scotland (paras 53-54, citing the report of the House of Lords Committee on the Constitution); similarly, problems exist in the case of bills extending to Wales as to the relationship between Welsh MPs and the Assembly (para 55, citing the Richard Report).

Other Matters

14.  Other matters dealt with in the paper include the need for inter-institutional co-ordination in the legislative programme (paras 56-58); questions affecting private members' bills (paras 59-60); the increased reliance on delegated legislation (paras 63-67); and the increasing difficulties caused by the complex condition of the statute book in Scotland and Wales (paras 68-71), since Acts of the Westminster Parliament affect both reserved and devolved matters. Thus, delegated legislation may be used by United Kingdom ministers to amend the law of Scotland in devolved areas; and the law in Wales is increasingly affected by subordinate legislation. The paper observes that "the complex state of the statute book produced by these different contributions is likely to endure" and to become increasingly difficult (para 71).

15.  Professor Himsworth concludes that the full effect of all these complexities on legislation at Westminster was probably not fully appreciated before the launch of devolution. At that time it might have been supposed that devolution would largely mean a reduction of work at Westminster, a gain that would be offset by very few disadvantages. The present asymmetry of devolution affects both the content and the process of legislation. In the fields of administration and policy, questions often arise "which require simultaneous but different answers across different parts of the United Kingdom" (para 73). Some of the difficulties experienced have been transitional, but there is bound to be continuing debate about the "logic of devolution" in its application to changing areas of government.

16.  Leaving aside the future of devolution in Northern Ireland, the biggest question that affects prospective legislation at Westminster is the future of Welsh devolution in the light of the Richard Commission report. While a greater measure of symmetry could be achieved by assimilating the position in Wales to that in Scotland, it seems likely that Westminster would continue to be the predominant legislator for Wales and that this could lead to "not a simpler but a more complex future" (para 75).

Comment and Conclusion

17.  As the paper notes, many of the increased complexities for the legislative process at Westminster derive from the nature of the devolution settlement, and it would be difficult to mitigate them without seeking to re-model the structure of that settlement. But other issues also emerge. There is for example the technical difficulty over what is described as the impossibility, in terms of territorial extent, of distinguishing between England and Wales since they both form part of a single jurisdiction. Westminster is able to legislate exclusively for Wales; but whenever it does so, it is at least laying the partial foundations for Welsh law to become a distinct jurisdiction.[2] To the extent that this is in process of occurring, common sense suggests that Westminster must be able to distinguish between legislating for England and for Wales. Implementation of the Richard Commission's report would take the matter very much further.

18.  There are other technical complexities. One example is the methods by which Westminster confers functions on the devolved organs of government; another relates to the concept in Scotland of cross-border public authorities. It would be preferable, wherever possible, that legislative measures should avoid artificialities and should aim for as much simplicity as possible in stating their effect on existing law and on the powers of the devolved authorities. We also note a threat to the coherence and accessibility of the bodies of statute law that exist in the four parts of the United Kingdom.

19.  The question is whether any practical steps could be taken to alleviate these problems for the future, without having to re-model the structure of the devolution settlement. In drawing the matter to the attention of the House, we invite the Government to say whether, in the light of this report, they consider it desirable to investigate practical means to mitigate the problems identified.

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1   HL Paper 28, Session 2002-03 Back

2   More general arguments to this effect are found in an article cited by Professor Himsworth, "Wales as a Jurisdiction", by TH Jones and JM Williams [2004] Public Law 78-101.  Back