HOUSE OF LORDS Select Committee on the Constitution 15th Report of Session 2003-04 Devolution: Its Effect on the Practice of Legislation at Westminster Report with Evidence Ordered to be printed 3 November and published 18 November 2004 Published by the Authority of the House of Lords London : The Stationery Office Limited £price HL Paper 192 Select Committee on the Constitution The Constitution Committee is appointed by the House of Lords in each session with the following terms of reference: To examine the constitutional implications of all public bills coming before the House; and to keep under review the operation of the constitution. Current Membership Lord Acton Lord Elton Lord Fellowes Baroness Gould of Potternewton Lord Holme of Cheltenham Baroness Howells of St Davids Lord Jauncey of Tullichettle Lord Lang of Monkton Lord MacGregor of Pulham Market Earl of Mar and Kellie Lord Morgan Lord Norton of Louth (Chairman) Publications The reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee are available on the internet at: http://www.parliament.uk/parliamentary_committees/lords_constitution_committee.cfm General Information General Information about the House of Lords and its Committees, including guidance to witnesses, details of current inquiries and forthcoming meetings is on the internet at: http://www.parliament.uk/parliamentary_committees/parliamentary_committees26.cfm Contact Details All correspondence should be addressed to the Clerk of the Select Committee on the Constitution, Committee Office, House of Lords, London, SW1A 0PW. The telephone number for general enquiries is 020 7219 5960. The Committee’s email address is: [email protected] CONTENTS Paragraph Page Introduction 3 General Principles 3 3 Territorial Extent 5 4 Non-Departmental Public Bodies 10 5 Legislative Authority 12 6 Other Matters 14 6 Comment and Conclusion 17 7 Appendix 1: The General Effects of Devolution upon the Practice of Legislation at Westminster. Paper by Professor C M G Himsworth 8 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, 1 HL Paper 28, Session 2002-03 6 DEVOLUTION: ITS EFFECT ON THE PRACTICE OF LEGISLATION AT WESTMINSTER 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. DEVOLUTION: ITS EFFECT ON THE PRACTICE OF LEGISLATION AT WESTMINSTER 7 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).