The Queen’s speech given today launches a pretty modest UK legislative programme. Whatever the reasons for that – failure to agree between the Coalition partners (see Patrick Wintour’s view that it’s largely a Lib Dem programme, here) or giving priority to other issues which don’t need legislation – it’s notably limited when it comes to the sort of domestic legislation that tended to throw up devolution issues while Labour were in office. Nonetheless, more such questions lurk within it than may be obvious at first glance.
Those notes include summaries of territorial extent and implications for devolution, which suggest rather greater consideration has been given to devolution questions than has been the case when many previous legislative programmes were announced. Indeed, that was conspicuously missing in the Coalition’s first Queen’s speech. If that was an example of poor practice in that regard, this is an example of pretty good practice.
(However, as an aside, the same cannot be said of the use of the term ‘transferred matters’ in some of those notes to describe whether something is devolved or not. That term is appropriate for matters devolved on an executive level, but not for legislative devolution – where matters can relate to devolved subjects, in Wales, to non-reserved matters, in Scotland, and to non-reserved and non-excepted matters, in Northern Ireland. That is a cumbersome way of putting things, but as devolved legislative powers are always legally concurrent, not exclusive, it is emphatically wrong to call them ‘transferred’.)
Of the nineteen bills or draft bills, the following seem likely to raise potential devolution issues, particularly relating to the application of the Sewel convention and whether a bill requires a devolved legislative consent motion (LCM). The ones that are most likely to raise these issues, or to cause tensions in intergovernmental relations, are the following:
- The draft Care and Support Bill is a proposal for legislation thatappears just to recast the current framework for adult care in England, rather than address the wider, long-term issues about funding identified by the Dilnot Commission. If so, its devolution impact is minimal. However, legislation on the wider funding issues will have significant implications for movement of people between England and other parts of the UK, if there is to be some sort of contributory or insurance-based element to fund care in England, and may also have effects on devolved funding and Barnett consequentials.
- The Children and Families Bill has a territorially complex mix of provisions, some relating to England only, some to the whole of the UK, some to England and Wales and some in Great Britain. The area most likely to cause problems is changes to the adoption register, which operates on a UK-wide basis by consent (as this was a devolved matter in Scotland and Northern Ireland when the Adoption and Children Act 2002 was passed, and now is for Wales too). The Cabinet Office note rather baldly states ‘Adoption provisions will apply to England. The Government will discuss with the Welsh ministers whether it will be extended to Wales’. Clearly an LCM will be needed for application in Wales, but this approach suggests a willingness to break up the UK-wide register (and the advantages it offers) without even holding discussions with the Scottish and Northern Ireland administrations.
- The draft Communications Data Bill provides for the UK Government to obtain data about communications. This appears to fall within the scope of reservations (for Scotland; exceptions for Northern Ireland) relating to national security and terrorism, so would not appear to need devolved legislative consent.
- The Crime and Courts Bill is another territorially complex, portmanteau bill. The proposal to create a ‘National Crime Agency’ with competence for serious, complex and organised crime will have significant effects on policing and the criminal law in Scotland and will therefore need an LCM there.
- The Electoral Registration and Administration Bill, providing for individual electoral registration, assumes that there is a single electoral roll. This is not wholly accurate, as the conditions to vote in local elections (and for devolved legislatures and the European Parliament, which use the same register) are different to those for voting in UK Parliamentary elections. As local elections, including electoral registration, are devolved in Scotland, and further devolution is to take place under the Scotland Act 2012, this bill would appear to need a Scottish LCM. It may also need a Welsh one – ‘electoral arrangements for local authorities’ are devolved, though the local government franchise is excepted from that.
- The Energy Bill relates to reserved/non-devolved matters, though given devolved interest in energy issues, notably over renewables but also nuclear power, one can expect a fair amount of intergovernmental disagreement about it.
- Most of the Enterprise and Regulatory Reform Bill concerns non-devolved/reserved matters, such as employment, competition or company law, butthe provisions regarding reduced inspections of business may relate to devolved as well as UK-level functions. If they do, LCMs will be required.
- The Groceries Code Adjudicator Bill also relates mainly to reserved/non-devolved matters such as competition law, but could require an LCM, if it affects devolved functions such as agriculture and food standards.
- The House of Lords Reform Bill has no direct impact on devolved matters, but the question of how the various parts of the UK should be represented in a reconstituted Upper House can be expected to run and run.
- The Justice and Security Bill will enable the security agencies to use material which will not be made public as evidence in civil cases – in effect, secret evidence. This is intended to apply across the UK, including Scotland and Northern Ireland where the courts and such matters as the law of evidence are devolved. There are exceptions and reservations relating to national security, which the UK Government may consider apply and justify not seeking devolved legislative consent. This would apply to be a very fine judgement, however, and the Scottish Government may well not agree.
- The Pensions Bill aims to reform the state pension and alter savings rules for private pension provision. Itclaims to relate only to Great Britain (and to reserved/non-devolved matters), but of course will affect Northern Ireland as well thanks to parity requirements. It is unclear what sort of consultation with the Northern Ireland Executive has taken place about it.
- The Small Donations Bill appears to contemplate an LCM for Northern Ireland; there would appear to be no reason for one in Scotland or Wales, as this relates to the tax treatment of donations to charities. Given the difficulties caused by differences in charity law between Scotland and England and Wales, however, this may work less smoothly in practice.
- The Water Bill is designed to implement the white paper Water for Life but despite that is only draft legislation, so we can expect a bill next session not this. It proposes to allow consumers to choose their water and sewerage suppliers, and also to provide for licensing new entrants into the water market. This appears to relate mostly to England and Wales, though the possibility of its extension to Scotland to create a ‘single market’ opens the possibility of an LCM there. The real issue is Wales, where devolved subjects include water supply and sewerage, water industry and water charges, though exclude appointing water undertakers for areas which are mostly in England and the licensing of water suppliers. The proposed purpose of the bill appears to relate extensively to devolved matters, and given the political sensitivities of water in Wales, this is likely to prove politically complex.
By my reckoning, this means that two bills – the Children and Families and draft Water bills – will require legislative consent motions in Wales, and three more – the Electoral Registration and Administration, Enterprise and Regulatory Reform, and Groceries Code Adjudicator bills – may well do, depending on what exactly they contain. Three bills – the Crime and Courts, Electoral Registration and Administration, and draft Water bills – will need LCMs in Scotland, and four others (the Children and Families, Enterprise and Regulatory Reform, Justice and Security and Groceries Code Adjudicator bills) may do. Quite apart from their own legislative programmes, devolved legislatures are going to have to spend quite a lot of time on business from Westminster, and several of those bills (the Water bill in Wales, and all the bills in Scotland) are likely to be politically controversial.
The McKay Commission may also be interested to note that, although there is greater clarity in identifying the likely territorial and devolution impact of bills, there are still plenty of areas for debate about what their effects might be. (My earlier piece on the Commission, and the challenges it faces, is HERE.) The devolution issues remain far from resolved at this point. Moreover, the tendency of Whitehall departments to use a legislative slot as an opportunity to legislate on a wide range of issues remains, without regard to their territorial impact, remains a vigorous one. Old habits evidently die hard.