Devolved, reserved and excepted matters

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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]

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References

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  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.
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  10. "Government of Wales Act 2006".
  11. "Government of Wales Act 2006, Schedule 5 (as amended)". Archived from the original on 20 November 2010.
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Legislation

Official guidance (published by the Cabinet Office)

Analysis