Devolved, reserved and excepted matters

Last updated

In the United Kingdom, devolved matters are the areas of public policy where the Parliament of the United Kingdom has devolved its legislative power to the national legislatures of Scotland, Wales and Northern Ireland, while reserved matters and excepted matters are the areas where the UK Parliament retains exclusive power to legislate.

Contents

The devolved administrations in Scotland, Wales and Northern Ireland have been granted power by the Parliament under their respective legislators in all areas except those which are reserved (or excepted in the case of Northern Ireland). Because the Parliament acts with sovereign supremacy, it is still able to pass legislation for all parts of the United Kingdom, including in relation to devolved matters. [1]

Devolution of powers

The devolution of powers are set out in three main acts legislated by the UK Parliament for each of the devolved governments in Scotland, Wales and Northern Ireland. The acts also include subsequent amendments, which devolved further powers to the administrations:

In Northern Ireland, the powers of the Northern Ireland Assembly do not cover reserved matters or excepted matters. In theory, reserved matters could be devolved at a later date, but excepted matters were not supposed to be considered for further devolution. In practice, the difference is minor as Parliament is responsible for all the powers on both lists and must give its consent to devolve them.

In Scotland, a list of reserved matters is explicitly listed in the Scotland Act 1998 (and amended by the Scotland Acts of 2012 and 2016). Any matter not explicitly listed in the Act is implicitly devolved to the Scottish Parliament.

In Wales, a list of reserved matters is explicitly listed under the provisions of the Wales Act 2017. Any matter not explicitly listed in the Act is implicitly devolved to the Senedd. Before 2017, a list of matters was explicitly devolved to the then known National Assembly for Wales and any matter not listed in the Act was implicitly reserved to Westminster.

Scotland and Wales

Scotland Map of Scotland within the United Kingdom.svg
Scotland
Wales Map of Wales within the United Kingdom.svg
Wales

The devolution schemes in Scotland and Wales are set up in a similar manner. The Parliament of the United Kingdom has granted legislative power to the Scottish Parliament and the Senedd through the Scotland Act 1998 and the Government of Wales Act 2006 respectively. These Acts set out the matters still dealt with by the UK Government, referred to as reserved matters.

Anything not listed as a specific reserved matter in the Scotland Act or the Wales Act is devolved to that nation. The UK Parliament can still choose to legislate over devolved areas. [1]

The legal ability of the Scottish Parliament or Senedd to legislate (its "legislative competence") on a matter is largely determined by whether it is reserved or not. [2] [3] [4] [5]

Lists

Devolved

Reserved

Reserved matters are subdivided into two categories: General reservations and specific reservations.

General reservations cover major issues which are always handled centrally by the Parliament in Westminster: [6] [7]

Additionally, in Wales, all matters concerning the single legal jurisdiction of England and Wales are reserved, including courts, tribunals, judges, civil and criminal legal proceedings, pardons for criminal offences, private international law, and judicial review of administrative action. An exception in Wales allows the Senedd to create Wales-specific tribunals that are not concerned with reserved matters.

Specific reservations cover policy areas which can only be regulated by Westminster, listed under 'heads':

HeadScotland [6] Wales [7]
Head A: Financial and economic matters
Fiscal, economic and monetary policy ReservedReserved
The currency ReservedReserved
Financial services and financial markets ReservedReserved
Money laundering ReservedReserved
Distribution of money from dormant bank accountsDevolvedReserved
Head B: Home affairs
Elections to the House of Commons ReservedReserved
Emergency powers ReservedReserved
Immigration and nationality ReservedReserved
Extradition ReservedReserved
National security and counter-terrorism ReservedReserved
Policing, criminal investigations and private security DevolvedReserved
Anti-social behaviour and public order DevolvedReserved
Illicit drugs ReservedReserved
Firearms ReservedReserved
Air gun licensing DevolvedReserved
Betting, gaming and lotteries ReservedReserved
Knives DevolvedReserved
Alcohol DevolvedReserved
Hunting with dogs and dangerous dogs DevolvedReserved
Prostitution, modern slavery DevolvedReserved
Film classification ReservedReserved
Scientific procedures on live animals ReservedReserved
Access to informationReservedReserved [note 1]
Data protection ReservedReserved
Lieutenancies ReservedReserved
Charities DevolvedReserved
Head C: Trade and industry
Regulation of businesses, insolvency, competition law Mostly reserved [note 2] Reserved
Copyright and intellectual property ReservedReserved
Import and export control ReservedReserved
Sea fishing outside the Scottish zoneReserved
Customer protection, product standards and product safetyReservedReserved
Consumer advocacy and advice DevolvedReserved
Weights and measures ReservedReserved
Telecommunications and postal services ReservedReserved
Research councils ReservedReserved
Industrial development and protection of trading interestsReservedReserved
Water and sewerage outside WalesReserved
Pubs Code Regulations DevolvedReserved
Sunday trading DevolvedReserved
Head D: Energy
Electricity ReservedReserved
Oil and gas, coal and nuclear energy ReservedReserved
Heating and coolingDevolvedReserved
Energy efficiency ReservedReserved
Head E: Transport
Traffic, vehicle and driver regulation ReservedReserved
Train services Partially devolved [note 3] Reserved
Policing of railways and railway property DevolvedReserved
Navigation, shipping regulation and coastguard ReservedReserved
Ports, harbours and shipping services outside Scotland or WalesReservedReserved
Air transport ReservedReserved
Head F: Social security
National Insurance, social security schemesMostly reserved [note 4] Reserved
Child support ReservedReserved
Occupational, personal and war pensions ReservedReserved
Public sector compensationDevolvedReserved
Head G: Regulation of the professions
Regulation of architects and auditorsReservedReserved
Regulation of the health professions ReservedReserved
Head H: Employment
Employment and industrial relations ReservedReserved
Health and safety ReservedReserved [note 5]
Industrial training boardsDevolvedReserved
Job search and supportReservedReserved
Head J: Health and medicines
Abortion DevolvedReserved
Xenotransplantation ReservedReserved
Embryology, surrogacy and human genetics ReservedReserved
Medicines, medical supplies and poisons ReservedReserved [note 6]
Welfare foods DevolvedReserved
Head K: Media and culture
Broadcasting ReservedReserved
Public lending right ReservedReserved
Government Indemnity Scheme for cultural objects on loanReservedReserved
Safety of sports groundsDevolvedReserved
(Wales only) Part 1: The Constitution
The Crown Estate DevolvedReserved
(Wales only) Head L: Justice
The legal profession, legal services and legal aid DevolvedReserved
Coroners Devolved [note 7] Reserved
Arbitration DevolvedReserved
Mental capacity DevolvedReserved
Personal data DevolvedReserved
Public sector information and public recordsDevolvedReserved
Compensation for persons affected by crimeDevolvedReserved
Prisons and offender managementDevolvedReserved
Marriage, family relationships, matters concerning childrenDevolvedReserved
Gender recognitionDevolved [note 8] [8] Reserved
Registration of births, deaths and places of worshipDevolvedReserved
(Wales only) Head M: Land and Agricultural Assets
Registration of land, agricultural charges and debenturesDevolvedReserved
Certain powers relating to infrastructure planning,
building regulation on Crown land, and land compensation
DevolvedReserved
Head L (Scotland) / Head N (Wales): Miscellaneous
Judicial salaries [note 9] ReservedReserved
Equal opportunities ReservedReserved
Control of nuclear, biological and chemical weapons ReservedReserved
The Ordnance Survey ReservedReserved
Time and calendarsReservedReserved
Bank holidaysDevolvedReserved
Outer space ReservedReserved
Antarctica ReservedReserved
Deep sea mining DevolvedReserved
  1. Appears under Head L in the Wales Act.
  2. The Scotland Act contains numerous exceptions to the reserved powers concerning insolvency.
  3. The construction of railways and the franchising of passenger services is devolved in Scotland.
  4. These powers are mostly reserved, but the Scottish Parliament can legislate on various disability, industrial injuries, and carer's benefits, maternity, funeral and heating expenses benefits, discretionary housing payments, and various schemes for job search and support.
  5. Appears under Head J in the Wales Act.
  6. The matter of poisons appears under Head B in the Wales Act.
  7. There are no coroners in Scotland. Instead, deaths that need to be investigated are reported to the procurator fiscal.
  8. Gender recognition is not explicitly reserved under the Scotland Acts. However, in 2023 the Secretary of State vetoed the Gender Recognition Reform (Scotland) Bill under Section 35 of the 1998 Act on the grounds that it affected the operation of the Equality Act 2010, which is reserved.
  9. This is a specific reservation in Scotland and a general reservation in Wales.

The reserved matters continue to be controversial in some quarters [ citation needed ] and there are certain conflicts or anomalies. For example, in Scotland, the funding of Scottish Gaelic television is controlled by the Scottish Government, but broadcasting is a reserved matter, and while energy is a reserved matter, planning permission for power stations is devolved.

Previously transferred, Wales

Prior to the passage of the Wales Act 2017, issues were only devolved if outlined in the Government of Wales Act 1998 or the Government of Wales Act 2006.

Government of Wales Act 1998

The Government of Wales Act 1998 lists the following fields to be transferred to the National Assembly for Wales: [9]

Government of Wales Act 2006

The Government of Wales Act 2006 updated the list of fields, as follows: [10]

Schedule 5 to the 2006 Act could be amended to add specific matters to the broad subject fields, thereby extending the legislative competence of the Assembly. [11]

Northern Ireland

Map of Northern Ireland within the United Kingdom.svg

Government of Ireland Act 1920

Devolution in Northern Ireland was originally provided for in the Government of Ireland Act 1920, which stated that the Parliament of Northern Ireland could not make laws in the following main areas: [12]

This was the first practical example of devolution in the United Kingdom and followed three unsuccessful attempts to provide home rule for the whole island of Ireland:

Irish unionists initially opposed home rule, but later accepted it for Northern Ireland, where they formed a majority. (The rest of the island became independent as what is now the Republic of Ireland.)

Direct rule

The Parliament of Northern Ireland was suspended on 30 March 1972 by the Northern Ireland (Temporary Provisions) Act 1972, [13] with Stormont's legislative powers being transferred to the Queen in Council.

Northern Ireland Constitution Act 1973

The Parliament of Northern Ireland was abolished outright by the Northern Ireland Constitution Act 1973; [14] legislative competence was conferred instead on the Northern Ireland Assembly. The 1973 Act set out a list of excepted matters (sch. 2) and "minimum" reserved matters (sch. 3).

The new constitutional arrangements quickly failed, and the Assembly was suspended on 29 May 1974, [15] having only passed two Measures.[ citation needed ]

Direct rule again

The Assembly was dissolved under the Northern Ireland Act 1974, [16] [17] which transferred its law-making power to the Queen in Council once again. The 1974 framework of powers continued in place until legislative powers were transferred to the present Northern Ireland Assembly on 2 December 1999, [18] under the Northern Ireland Act 1998, following the Belfast Agreement of 10 April 1998.

Northern Ireland Act 1998

List of key excepted matters

Excepted matters are outlined in Schedule 2 of the Northern Ireland Act 1998: [19]

List of key reserved matters

Reserved matters are outlined in Schedule 3 of the Northern Ireland Act 1998: [20]

Policing and justice

Following the suspension of the Parliament of Northern Ireland, policing and justice powers transferred to the UK Parliament and were subsequently administered by the Northern Ireland Office within the UK Government. These powers were not devolved following the Belfast Agreement.

The Hillsborough Castle Agreement [21] on 5 February 2010 resulted in the following reserved powers being transferred to the Northern Ireland Assembly on 12 April 2010: [22]

Some policing and justice powers remain reserved to Westminster: [23]

A number of policing and justice powers remain excepted matters and were not devolved. These include:

Parity

Northern Ireland has parity with Great Britain in three areas:

Policy in these areas is technically devolved but, in practice, follows policy set by the Westminster Parliament to provide consistency across the United Kingdom. [24]

Related Research Articles

<span class="mw-page-title-main">Legislatures of the United Kingdom</span> Parliamentary bodies of the United Kingdom and its component jurisdictions

The legislatures of the United Kingdom are derived from a number of different sources. The parliament of the United Kingdom is the supreme legislative body for the United Kingdom and the British overseas territories with Scotland, Wales and Northern Ireland each having their own devolved legislatures. Each of the three major jurisdictions of the United Kingdom has its own laws and legal system.

<span class="mw-page-title-main">Scottish Parliament</span> Devolved parliament of Scotland

The Scottish Parliament is the devolved, unicameral legislature of Scotland. Located in the Holyrood area of the capital city, Edinburgh, it is frequently referred to by the metonym Holyrood. The Parliament is a democratically elected body comprising 129 members known as Members of the Scottish Parliament (MSPs), elected for five-year terms under the regionalised form of additional member system (MMP): 73 MSPs represent individual geographical constituencies elected by the plurality (first-past-the-post) system, while a further 56 are returned as list members from eight additional member regions. Each region elects seven party-list MSPs. Each region elects 15 to 17 MSPs in total. The most recent general election to the Parliament was held on 6 May 2021, with the Scottish National Party winning a plurality.

<span class="mw-page-title-main">West Lothian question</span> UK constitutional anomaly

The West Lothian question, also known as the English question, is a political issue in the United Kingdom. It concerns the question of whether members of Parliament (MPs) from Northern Ireland, Scotland and Wales who sit in the House of Commons should be able to vote on matters that affect only England, while neither they nor MPs from England are able to vote on matters that have been devolved to the Northern Ireland Assembly, the Scottish Parliament and the Senedd. The term West Lothian question was coined by Enoch Powell MP in 1977 after Tam Dalyell, the Labour MP for the Scottish constituency of West Lothian, raised the matter repeatedly in House of Commons debates on devolution.

<span class="mw-page-title-main">Secretary of State for Northern Ireland</span> Member of the Cabinet of the United Kingdom

The secretary of state for Northern Ireland, also referred to as the Northern Ireland secretary or SoSNI, is a secretary of state in the Government of the United Kingdom, with overall responsibility for the Northern Ireland Office. The incumbent is a member of the Cabinet of the United Kingdom.

<span class="mw-page-title-main">Senedd</span> Devolved parliament of Wales

The Senedd, officially known as the Welsh Parliament in English and Senedd Cymru in Welsh, is the devolved, unicameral legislature of Wales. A democratically elected body, it makes laws for Wales, agrees to certain taxes, and scrutinises the Welsh Government. It is a bilingual institution, with both Welsh and English being the official languages of its business. From its creation in May 1999 until May 2020, the Senedd was officially known as the National Assembly for Wales and often simply called the Welsh Assembly.

<span class="mw-page-title-main">Scotland Act 1998</span> United Kingdom legislation

The Scotland Act 1998 is an Act of the Parliament of the United Kingdom which legislated for the establishment of the devolved Scottish Parliament with tax varying powers and the Scottish Government. It was one of the most significant constitutional pieces of legislation to be passed by the UK Parliament between the passing of the European Communities Act in 1972 and the European Union (Withdrawal) Act in 2018 and is the most significant piece of legislation to affect Scotland since the Acts of Union in 1707 which ratified the Treaty of Union and led to the disbandment of the Parliament of Scotland.

<span class="mw-page-title-main">Legislative consent motion</span> Consent to UK law affecting devolved matter

A legislative consent motion is a motion passed by either the Scottish Parliament, Senedd, or Northern Ireland Assembly, in which it consents that the Parliament of the United Kingdom may pass legislation on a devolved issue over which the devolved government has regular legislative authority.

<span class="mw-page-title-main">Northern Ireland Assembly</span> Legislature of Northern Ireland

The Northern Ireland Assembly, often referred to by the metonym Stormont, is the devolved legislature of Northern Ireland. It has power to legislate in a wide range of areas that are not explicitly reserved to the Parliament of the United Kingdom, and to appoint the Northern Ireland Executive. It sits at Parliament Buildings at Stormont in Belfast.

<span class="mw-page-title-main">Government of Wales Act 1998</span> United Kingdom legislation

The Government of Wales Act 1998 is an Act of the Parliament of the United Kingdom. Passed in 1998, the act created the National Assembly for Wales, Auditor General for Wales and transferred devolved powers to the assembly. The act followed the 1997 Welsh devolution referendum.

<span class="mw-page-title-main">Government of Wales Act 2006</span> United Kingdom legislation

The Government of Wales Act 2006 is an act of the Parliament of the United Kingdom that reformed the then-National Assembly for Wales and allows further powers to be granted to it more easily. The Act creates a system of government with a separate executive drawn from and accountable to the legislature. It is part of a series of laws legislating Welsh devolution.

The law of Northern Ireland is the legal system of statute and common law operating in Northern Ireland since the partition of Ireland established Northern Ireland as a distinct jurisdiction in 1921. Prior to 1921, Northern Ireland was part of the same legal system as the rest of Ireland.

<span class="mw-page-title-main">Northern Ireland Constitution Act 1973</span> United Kingdom legislation

The Northern Ireland Constitution Act 1973 is an act of the Parliament of the United Kingdom which received the royal assent on 18 July 1973. The act abolished the suspended Parliament of Northern Ireland and the post of Governor and made provision for a devolved administration consisting of an Executive chosen by the new Northern Ireland Assembly devised under the Sunningdale Agreement; the assembly had already been created by the Northern Ireland Assembly Act 1973, passed two months earlier.

<span class="mw-page-title-main">Welsh law</span> Primary and secondary legislation generated by the Senedd

Welsh law is an autonomous part of the English law system composed of legislation made by the Senedd. Wales is part of the legal jurisdiction of England and Wales, one of the three legal jurisdictions of the United Kingdom. However, due to devolution, the law in Wales is increasingly distinct from the law in England, since the Senedd, the devolved parliament of Wales, can legislate on non-reserved matters.

<span class="mw-page-title-main">Scottish devolution</span> Since 1707 Acts of Union to present day

Devolution is the process in which the central British parliament grants administrative powers to the devolved Scottish Parliament. Prior to the advent of devolution, some had argued for a Scottish Parliament within the United Kingdom – while others have since advocated for complete independence. The people of Scotland first got the opportunity to vote in a referendum on proposals for devolution in 1979 and, although a majority of those voting voted 'Yes', the referendum legislation also required 40% of the electorate to vote 'Yes' for the plans to be enacted and this was not achieved. A second referendum opportunity in 1997, this time on a strong proposal, resulted in an overwhelming 'Yes' victory, leading to the Scotland Act 1998 being passed and the Scottish Parliament being established in 1999.

<span class="mw-page-title-main">Department for Business, Innovation and Skills</span> Defunct ministerial department of the government of the United Kingdom

The Department for Business, Innovation and Skills (BIS) was a ministerial department of the Government of the United Kingdom. It was created by the Gordon Brown premiership on 5 June 2009 by the merger of the Department for Innovation, Universities and Skills and the Department for Business, Enterprise and Regulatory Reform. It was disbanded by the Rishi Sunak premiership on the creation of the Department for Business, Energy and Industrial Strategy on 14 July 2016.

<span class="mw-page-title-main">Devolution in the United Kingdom</span> Granting governmental powers to parts of the UK

In the United Kingdom, devolution is the Parliament of the United Kingdom's statutory granting of a greater level of self-government to the Scottish Parliament, the Senedd, the Northern Ireland Assembly and the London Assembly and to their associated executive bodies: the Scottish Government, the Welsh Government, the Northern Ireland Executive and in England, the Greater London Authority and combined authorities.

The Commission on Devolution in Wales, also known as the Silk Commission, was an independent commission established by Welsh Secretary Cheryl Gillan on 11 October 2011. The commission was based at the Wales Office Cardiff headquarters, at Cardiff Bay and met for the first time on 4 November 2011 at the Millennium Stadium, Cardiff. The commission reviewed the case for the devolution of fiscal powers to the Welsh Assembly, now the Senedd, and considered the case for increasing the powers of the assembly. It published its findings in two parts.

<span class="mw-page-title-main">Federalism in the United Kingdom</span> Proposed constitutional reform of a division of powers

Federalism in the United Kingdom aims at constitutional reform to achieve a federal UK or a British federation, where there is a division of legislative powers between two or more levels of government, so that sovereignty is decentralised between a federal government and autonomous governments in a federal system.

<span class="mw-page-title-main">United Kingdom Internal Market Act 2020</span> UK law relating to internal trade

The United Kingdom Internal Market Act 2020 is an act of the Parliament of the United Kingdom passed in December 2020. Its purpose is to prevent internal trade barriers within the UK, and to restrict the legislative powers of the devolved administrations in economic matters. It is one of several pieces of legislation concerning trade that were passed following the European Union membership referendum, as after Brexit the UK is no longer directly subject to EU law.

<span class="mw-page-title-main">Welsh devolution</span> Transfer of legislative power to Welsh authorities from UK government

Welsh devolution is the transfer of legislative power for self-governance to Wales by the Government of the United Kingdom.

References

  1. 1 2 "Sewel Convention". Institute for Government. 16 January 2018.
  2. "Scotland Act 1998".
  3. "Scotland Act 1998".
  4. "Scotland Act 1998".
  5. "Scotland Act 1998".
  6. 1 2 "Scotland Act 1998: Schedule 5", legislation.gov.uk , The National Archives, 1998 c. 46 (sch.5)
  7. 1 2 "Government of Wales Act 2006: Schedule 7A", legislation.gov.uk , The National Archives, 2006 c. 32 (sch.7A)
  8. The Secretary of State's veto and the Gender Recognition Reform (Scotland) Bill (Report). 11 December 2023.
  9. "Government of Wales Act 1998".
  10. "Government of Wales Act 2006".
  11. "Government of Wales Act 2006, Schedule 5 (as amended)". Archived from the original on 20 November 2010.
  12. "Government of Ireland Act 1920 (1920 c. 67), section 4: Legislative powers of Irish Parliaments (as enacted)". legislation.gov.uk . The National Archives . Retrieved 27 December 2023.
  13. "Northern Ireland (Temporary Provisions) Act 1972 (1972 c. 22), section 1: Exercise of executive and legislative powers in N.I. (as enacted)". legislation.gov.uk . The National Archives . Retrieved 27 December 2023.
  14. "Northern Ireland Constitution Act 1973 (1973 c. 36), section 31: Abolition of Parliament of Northern Ireland (as enacted)". legislation.gov.uk . The National Archives . Retrieved 27 December 2023.
  15. "The Northern Ireland Assembly (Prorogation) Order 1974", legislation.gov.uk , The National Archives, 29 May 1974, SI 1974/926, retrieved 27 December 2023
  16. "Northern Ireland Act 1974 (1974 c. 28), section 1: Dissolution and prorogation of existing Assembly... (as enacted)". legislation.gov.uk . The National Archives . Retrieved 27 December 2023.
  17. "The Northern Ireland Assembly (Dissolution) Order 1975", legislation.gov.uk , The National Archives, 18 March 1975, SI 1975/422, retrieved 27 December 2023
  18. "The Northern Ireland Act 1998 (Commencement No. 5) Order 1999", legislation.gov.uk , The National Archives, 30 November 1999, SI 1999/3209, retrieved 27 December 2023
  19. "Northern Ireland Act 1998: Schedule 2", legislation.gov.uk , The National Archives, 19 November 1998, 1998 c. 47 (sch.2), retrieved 27 December 2023
  20. "Northern Ireland Act 1998: Schedule 3", legislation.gov.uk , The National Archives, 19 November 1998, 1998 c. 47 (sch.3), retrieved 27 December 2023
  21. "Hillsborough Castle Agreement 2010".
  22. "The Northern Ireland Act 1998 (Amendment of Schedule 3) Order 2010", legislation.gov.uk , The National Archives, 31 March 2010, SI 2010/977, retrieved 27 December 2023
  23. "Policing and Justice motion, Northern ireland Assembly, 12 April 2010". Archived from the original on 16 December 2010.
  24. "Northern Ireland Act 1998 (1998 c. 47), Part VIII: Miscellaneous". legislation.gov.uk . The National Archives . Retrieved 27 December 2023.

Legislation

Official guidance (published by the Cabinet Office)

Analysis