Joint Committee on Statutory Instruments

Joint Committee on Statutory Instruments Twenty-Seventh Report

APPENDIX I (continued)

ORDERS SUBJECT TO SCRUTINY BOTH AT WESTMINSTER AND IN EDINBURGH OR CARDIFF

29. The order-making powers created under the Scotland and Government of Wales bills can be divided into two categories:

- operation of devolved powers - those concerned with day to day running of devolved powers - these will not be used until the devolved chambers start to work.

30. There are relatively few powers which will involve delegated legislation being laid both in Westminster and in Edinburgh or Cardiff and they mainly concern the more important transfer of powers. The main effect of the bills will therefore be to remove from scrutiny at Westminster delegated legislation on Scottish and Welsh matters which has been devolved.

Scotland

31. The Scotland bill includes over 30 powers to make subordinate legislation. The table at the end of this memorandum lists these powers along with the parliamentary procedure which applies in each case. Of these, 26 are subject to procedure in the Westminster Parliament only, and normal scrutiny arrangements will apply. A further 4 are subject to procedure in the Scottish Parliament only. As described above, the procedures which the Scottish Parliament adopts for consideration of these orders will be a matter for the Parliament itself. Of particular interest are the five powers which are subject to procedure in both the Westminster and Scottish Parliaments. This approach has been used where both Parliaments have an interest. The relevant powers are

Clause 59: Transfer of additional functions to the Scottish Ministers

Clause 84: Adaptation of cross-border public bodies

Clause 85: Transfer of property etc of cross-border public bodies; and

Clause 99: Regulation of Tweed and Esk fisheries.

32. These powers will require coordination between the two Parliaments and between the appropriate Ministers of the Crown and the Scottish Executive. It is not possible to determine what precise arrangements will be required until the Scottish Parliament has determined the procedures for scrutiny of subordinate legislation. However, it is envisaged that liaison arrangements between the UK Government and the Scottish Executive and between the two Parliaments will be put in place to ensure any necessary coordination is achieved.

Wales

33. In relation to Wales only one order-making power will be subject to proceedings both at Westminster and in Cardiff. Transfer of ministerial function (clause 22(4)(b) Government of Wales bill) will be subject to affirmative procedure at Westminster only, unless the order varies or revokes a previous order, in which case affirmative procedure will also apply in the Assembly. 17 further powers will be subject to affirmative procedure at Westminster, about half of which are transitional powers involved in establishing the Assembly. A further 25 will be subject to negative procedure at Westminster (about a third of which are transitional); one other type of order would have to be laid at Westminster but would not be subject to any procedure and four other powers could be exercised without laying before Parliament. The Government of Wales bill contains a further ten types of order which can be made by the Assembly and which, in most cases, will not involve any Westminster procedure. The exceptions relate to statutory instruments made jointly by the Assembly and a UK minister or relating to cross-border responsibilities (clause 43(4-6) (Parliamentary procedures for subordinate legislation)) and regulations implementing EU law which contain regulations made by a UK minister (clause 30 (Power to implement Community law)).

ORDERS MADE JOINTLY WITH UK MINISTERS

34. Some instruments will continue to be made jointly by the Scottish and/or Welsh Secretaries with another UK Minister - examples include some planning and agriculture functions. The Government's general policy is to place the devolved authorities in a position so that they exercise functions on their own for Wales and Scotland but, before "splitting" joint functions in this way, the Government will consider in each case whether it is desirable to do so. Two situations will arise:

- the UK Minister alone will make delegated legislation in relation to England and the National Assembly for Wales and/or Scottish Ministers will make delegated legislation separately for Wales and Scotland or

- delegated legislation will continue to be made jointly by UK Ministers, Scottish Ministers and the National Assembly for Wales (for instance on planning under clause 51(2) of the Scotland bill (Functions exercisable with agreement)).

35. In both situations the delegated legislation relating to England will continue to be treated in the same way at Westminster as it is now. Delegated legislation made jointly with Scottish Ministers and/or the National Assembly for Wales will also be subject to scrutiny in Edinburgh and/or Cardiff.

PROCEDURE WHEN INSTRUMENTS ARE TO BE CONSIDERED BOTH IN WESTMINSTER AND IN EDINBURGH OR CARDIFF

36. 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 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.

EUROPEAN COMMUNITY LAW

Scotland

37. There is also a residual power for UK ministers to make orders in relation to devolved matters to give effect to EU law - possibly implementing EU law throughout the UK by a single set of regulations (clause 53 of the Scotland bill (Community law and Convention rights)). Such regulations would be subject to normal Westminster scrutiny procedures; any examination of their implications for Scotland and Wales would be matters for the Scottish Parliament and the National Assembly for Wales.

38. Paragraph 6(2) of Schedule 5 to the Scotland bill provides that observing and implementing international obligations, obligations under the Human Rights Convention and obligations under Community law are not reserved matters per se. The Parliament will therefore be able to legislate to give effect to Community law in areas which are devolved. Clause 53(2) provides that a member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with Community law or the Convention rights (that is, those parts of the European Convention on Human Rights that are incorporated into UK law by the Human Rights bill).

39. Functions transferred under clause 49 (General transfer of functions) are to be exercisable by the Scottish Ministers instead of by a Minister of the Crown. However, clause 53(1) provides that, despite this transfer of functions, any function of a Minister of the Crown shall continue to be exercisable by him as regards Scotland for the purposes of implementing Community obligations.

Wales

40. Clause 106 of the Government of Wales bill (Community obligations of Assembly) makes clear that the Assembly has no power to do things which are incompatible with Community law or any of the Convention rights (that is, those parts of the European Convention on Human Rights that are incorporated into UK law by the Human Rights bill). Clause 107 (Power to prevent incompatible action etc) provides that a Community obligation of the United Kingdom is an obligation also of the Assembly to the extent that it falls within its powers.

41. Under clause 30(1) of the bill (Power to implement Community law), the Assembly can be designated for the purpose of making regulations under section 2(2) of the European Communities Act 1972 ("the 1972 Act"). The Government has yet to take a decision on the matters in respect of which the Assembly will be so designated. It is expected that the Assembly will be designated for a range of purposes which will be similar to the purposes for which the Secretary of State for Wales has been designated under section 2(2) of the 1972 Act.

42. In addition, the Assembly will have transferred to it a variety of powers to make subordinate legislation that could be used to implement Community obligations. Clause 23(4) of the bill (Transfers: supplementary) provides that, where any such functions are transferred to the Assembly by Order in Council, they will nevertheless continue to be exercisable by a Minister of Crown in relation to Wales for the purpose of implementing Community obligations. The functions will be concurrent. This flexibility allows for such circumstances as those where the Assembly does not wish a Community obligation to be implemented differently in Wales and therefore asks a Minister to make the orders, regulations or rules for Wales; or where the UK Government wishes to adopt a common scheme of implementation across the UK.

43. As far as subordinate legislation powers in future bills are concerned, concurrency of implementation powers can most easily be achieved by designating the appropriate Minister under section 2(2) of the 1972 Act for a particular purpose in relation to Wales.