BRIEFING PAPER Number CBP 8544, 5 April 2019 Reserved matters in the By David Torrance United Kingdom Contents: 1. What are reserved matters? 2. Reserved matters in historical context 3. Reserved matters in Scotland 4. Reserved matters in Wales 5. Reserved matters in Northern Ireland 6. The Supreme Court and reserved matters 7. UK departmental responsibility for reserved matters 8. Further reading www.parliament.uk/commons-library | intranet.parliament.uk/commons-library | [email protected] | @commonslibrary 2 Reserved matters in the United Kingdom Contents Summary 3 1. What are reserved matters? 4 1.1 Restrictions on devolved legislatures 4 1.2 Subject-matter restrictions 6 1.3 “A relevant commonality” 6 2. Reserved matters in historical context 7 2.1 Reserved matters for Ireland and Northern Ireland 8 2.2 Scotland and Wales Acts, 1978 9 Later developments in Scotland 10 2.3 Scotland Bill 1997-98 10 2.4 Government of Wales Bill 1997-98 11 2.5 Northern Ireland Bill 1997-98 12 3. Reserved matters in Scotland 13 3.1 Secretary of State 14 3.2 Adjusting the boundary 14 2014 Independence referendum 15 Clarity of Schedule 5 15 “Shared” powers 16 4. Reserved matters in Wales 17 4.1 Criticisms of the Wales Act 2017 19 5. Reserved matters in Northern Ireland 20 5.1 Changes to reserved matters since 1998 21 6. The Supreme Court and reserved matters 22 6.1 General principles 22 6.2 Interpretive provisions 24 Scotland 24 Wales 25 Northern Ireland 25 6.3 Scottish case law 26 6.4 Welsh case law 27 6.5 Northern Irish case law 27 6.6 EU Withdrawal Act and reserved matters 28 6.7 “Common frameworks” 29 7. UK departmental responsibility for reserved matters 30 8. Further reading 44 Cover page image copyright: David Torrance 3 Commons Library Briefing, 5 April 2019 Summary With the passage of the Wales Act 2017, Senedd/Cymru/the Welsh Parliament joined the Scottish Parliament and Northern Ireland Assembly in following what is known as the “reserved powers” model of devolution, in that everything not specifically set out in statute as reserved to Westminster is assumed to be devolved. Three separate Library Briefing Papers have looked at which matters are devolved to Wales, Scotland and Northern Ireland.1 The focus of this paper, however, is which decisions are still taken by the UK Parliament and Government. While some reserved matters are common to all three devolved legislatures, such as the Crown, defence and foreign affairs, others are not. In Northern Ireland, for example, the ability to set income tax is reserved to the UK Parliament, but, to varying degrees, devolved in Scotland and Wales. The fact that the extent of matters reserved to Westminster varies in Scotland, Wales and Northern Ireland is partly a reflection of each territory’s distinct history and governance. Lady Hale has observed that reserved matters have “no common characteristic”, but rather “a common theme”, including areas which are affected by the UK’s “treaty obligations and matters that are designed to ensure that there is a single market within the United Kingdom for the free movement of goods and services”. The number of reserved matters has also been reduced over time, most extensively in the case of Scotland, but also in Wales and Northern Ireland. There are only a few examples of powers moving in the other direction, for example Antarctica was specifically reserved in 2012. Some reserved matters – i.e. the ability to hold an independence referendum in Scotland – have been temporarily devolved. After providing some historical background, this paper looks at, in turn, reserved matters in Scotland, Wales and Northern Ireland, before examining the role of the Supreme Court in determining the precise boundary between devolved and reserved matters in the three parts of the UK with devolved legislatures. It concludes with an illustrative list of reserved matters in Scotland, Wales and Northern Ireland, as well as relevant UK departmental responsibility for each. 1 See Commons Library Briefing Papers CBP 8318“A process, not an event”: Devolution in Wales, 1998- 2018, CBP-8441“The settled will”? Devolution in Scotland, 1998-2018 and CBP-8439 Devolution in Northern Ireland, 1998-2018. 4 Reserved matters in the United Kingdom 1. What are reserved matters? Reserved matters Reserved matters are political powers – legislative or executive – that are held exclusively by a particular political authority, usually in multi-national states such as the United Kingdom of Great Britain and Northern Ireland, or in federal countries like the United States of America, Canada and Australia. The glossary pages of the UK Parliament website describe “devolved matters” are those areas of government where “decision-making has been delegated” by the UK Parliament to devolved legislatures in Scotland, Wales and Northern Ireland, while “reserved matters” are decisions that are “still taken by the UK Parliament at Westminster”, even though they have effect in Scotland, Wales or Reserved matters Northern Ireland.2 should not to be Since 2018, when most provisions of the Wales Act 2017 came into confused with force, the Scottish Parliament, Senedd Cymru/the Welsh Parliament3 reserve power, and Northern Ireland Assembly4 have all operated on what is known as which usually refers the “reserved powers” model. This means that everything not to powers under specifically set out in statute as “reserved” to Westminster is therefore the Royal assumed to be devolved to Edinburgh, Cardiff and Belfast. Prerogative, for The extent of powers reserved to Westminster, however, varies in example Scotland, Wales and Northern Ireland, which is partly a reflection of government each territory’s distinct history and governance. While some reserved formation and matters are common to all three devolved legislatures, such as the patronage, and Crown, defence and foreign affairs, others are not. In Northern Ireland, which are generally for example, the ability to set income tax is reserved to the UK exercised by the Parliament, but, to varying degrees, devolved in Scotland and Wales. Sovereign, governments on Lady Hale has observed that there is “no common characteristic”, but behalf of the rather “a common theme”: Sovereign, or by It is that matters in which the United Kingdom as a whole has an Governors or other interest should continue to be the responsibility of the United individuals Kingdom Parliament at Westminster. They include matters which representing the are affected by its treaty obligations and matters that are designed to ensure that there is a single market within the United Sovereign. Kingdom for the free movement of goods and services.5 1.1 Restrictions on devolved legislatures A provision of an Act of a devolved legislature is “not law” if it is outside legislative competence. The Northern Ireland Act 1998 says “if”; 2 UK Parliament website, “Devolved and reserved matters” 3 This name change from “National Assembly for Wales” took effect on 6 May 2020. 4 Between January 2017 and January 2020, the Northern Ireland Assembly and Executive were not fully functioning. 5 Lady Hale, “Devolution and The Supreme Court – 20 Years On”, 14 June 2018. 5 Commons Library Briefing, 5 April 2019 the Scotland Act 1998 and Wales Act 2017 say “so far as”.6 A provision is also “not law” if in Northern Ireland it “deals with” an excepted matter and is “not ancillary to other provisions […] dealing with reserved or transferred matters”; in Scotland or Wales if it “relates to” a reserved matter. The same is true if provisions modify certain “protected” UK enactments.7 Other restrictions on devolved legislative competence do not relate to reserved matters. If a provision of an Act of the Northern Ireland Assembly or Scottish Parliament would form part of the law of a country or territory other than Northern Ireland or Scotland, then it would fall outside competence, as would a provision of an Act of the Welsh Parliament if “it extends otherwise than only to England and Wales” or “applies otherwise than in relation to Wales”.8 Similarly, if any devolved provision is incompatible with European Union law or Convention rights, that is rights enshrined in the European Convention on Human Rights (ECHR) and given domestic effect by the Human Rights Act 1998, it is also not law.9 Another restriction is specific to Northern Ireland, with section 6(2)(e) of the Northern Ireland Act 1998 stating that the Northern Ireland Assembly cannot enact legislation which “discriminates against any person or class of person on the ground of religious belief or political opinion”.10 Finally, all three devolution statutes state that their respective provisions do “not affect the power of the Parliament of the United Kingdom to make laws” for Scotland, Northern Ireland and Wales.11 The Wales Act 2017 and Scotland Act 2016 (but not the Northern Ireland Act 1998) also state that “it is recognised” the UK Parliament will not “normally” legislate in devolved areas without the consent of the local legislature, thus putting a convention originally formulated by Lord Sewel into statutory form.12 6 See section 6(1) of the Northern Ireland Act 1998, section 29(1) of the Scotland Act 1998 and section 108A(1) of the Government of Wales Act 2006. Lady Hale does not believe this distinction “makes a difference”. “The point is that it is only the impugned provision which is now law: the rest remains” (Lady Hale, “Devolution and The Supreme Court – 20 Years On”, 14 June 2018). 7 See sections 6(2)(b) and 6(2)(f) of the Northern Ireland Act 1998, sections 29(2)(b) and 29(2)(c) of the Scotland Act 1998 and sections 108A(2)(c) and 108A(2)(d) of the Government of Wales Act 2006.