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.
Devolution in the United Kingdom is regarded as the decentralisation of power from the UK Government, with powers devolved to the Scottish Parliament and Scottish Government, the Northern Ireland Assembly and Northern Ireland Executive and the Welsh Parliament and Welsh Government, in all areas except those which are reserved or excepted.[1] Amongst the four countries of the United Kingdom, Scotland has the most extensive devolved powers controlled by the Scottish Parliament, with the Scottish Government being described as the "most powerful devolved government in the world".[2][3]
In theory, reserved matters could be devolved at a later date, whereas excepted matters (defined only in relation to Northern Ireland) are not supposed to be considered for further devolution. In practice, the difference is minor as Westminster is responsible for all the powers on both lists and its consent is both necessary and sufficient to devolve them. Because Westminster acts with sovereign supremacy, it is still able to pass legislation for all parts of the United Kingdom, including in relation to devolved matters.[4]
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:
- Northern Ireland Act 1998 amended by the Northern Ireland Act 2006.
- Scotland Act 1998 amended by the Scotland Act 2012 and the Scotland Act 2016.
- Government of Wales Act 1998 amended by the Government of Wales Act 2006, the Wales Act 2014 and the Wales Act 2017
As a result of the historical and administrative differences between Scotland, Wales and Northern Ireland, matters which are devolved and which are reserved, varies between each country.[5]
In Northern Ireland, the powers of the Northern Ireland Assembly do not cover reserved matters or excepted matters.
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. The Scottish Parliament controls around 60% of spending in Scotland. Any form of revenue raised within the Scottish economy will remain in Scotland, whilst the Scottish Government is permitted to retain the first ten percentage points of VAT collected in Scotland (50% of revenue). Additionally, the Scottish Government has control over Air Passenger Duty (the tax to be paid by air travellers leaving Scotland), Aggregates Levy (the power to tax companies involved in extracting aggregates within Scotland) and has additional borrowing powers which permits the Scottish Government to borrow up to 10% of its budget annually.[6] The Scottish Government can borrow up to £3.5 billion in additional funding to invest in public services, such as schools, transportation networks and healthcare, amongst other areas.[7]
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. In Wales, the Welsh Government became responsible for income tax only in 2019, meaning individuals with their permanent residence located in Wales and, as a result, pay Income Tax in Wales, will now pay Welsh rates of Income Tax which is set by the Welsh Government. Additionally, the Welsh Government has been granted powers over Land Transaction Tax and Landfill Disposals Tax.[8]
Scotland and Wales
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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.[4]
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.[9][10][11][12] Additionally, the Scottish Parliament can overturn any piece of existing UK legislation and introduce legislation in areas not retained by Westminster, whilst the Welsh Assembly is only permitted to amend existing UK legislation passed by the UK Parliament in the areas devolved to Wales.
The Scottish Parliament has substantially more powers than both the Welsh Parliament and Northern Ireland Assembly, with the Scottish Government being described as "one of the most powerful devolved governments in the world".[13] The Scottish Parliament has the power to vary the basic rate of income tax whilst the Welsh Parliament relies only on funding by the central UK government. Additionally, Scotland has been granted substantially more powers on international affairs and foreign engagement. Despite foreign affairs remaining a reserved matter to the UK parliament, the Scottish Government has been granted authority to be more directly involved in government decision making on European Union matters and relations. In Wales, this is not the case, with the Welsh Government having no additional power on international relations, with this right being retained by the Secretary of State for Wales in the UK Government.[14]
Scotland has the most extensive tax powers of any of the devolved governments, followed by Wales and Northern Ireland. The three devolved governments have full legislative power over council tax, business tax, whilst Scotland and Wales has additional tax powers in areas such as property tax, landfill tax, stamp tax and some aspects of income tax, whilst the Northern Ireland Executive does not. Furthermore, Scotland has legislative control over areas such as air passenger duty, value added tax (VAT) and aggregates levy. The Welsh Government and Northern Ireland Executive do not have control over those areas in their respective countries.[15]
Devolved powers in Scotland
Of the three countries within the United Kingdom with devolved parliaments, the Scottish Parliament has the most extensive devolved powers in which it is responsible for.[16]
The responsibilities of the Scottish Ministers broadly follow those of the Scottish Parliament provided for in the Scotland Act 1998 and subsequent UK legislation. Where pre-devolution legislation of the UK Parliament provided that certain functions could be performed by UK Government ministers, these functions were transferred to the Scottish Ministers if they were within the legislative competence of the Scottish Parliament.
Functions which were devolved under the Scotland Act 1998 included:[17]
- Healthcare – NHS Scotland, mental health, dentistry, social care
- Education – pre-school, primary, secondary, further, higher and lifelong education, as well as educational training policy and programmes
- Student Awards Agency for Scotland
- Scottish Public Pensions Agency
- Scots law and justice – civil justice, civil law and procedure, courts, criminal justice, criminal law and procedure, debt and bankruptcy, family law, legal aid, the legal profession, property law and Disclosure Scotland
- Most aspects of transport – setting drink and drug-driving limits, speed limits, some aspects of railways, including Scottish passenger rail franchises (ScotRail), concessionary travel schemes, cycling, parking, local road pricing, congestion charging, promotion of road safety and road signs
- Environment – environmental protection policy, climate change, pollution, waste management, water supplies and sewerage, national parks and flood and coastal protection
- Policing and the Scottish Prison Service
- Planning system in Scotland
- Rural Affairs (including Cairngorms National Park Authority, Loch Lomond and The Trossachs National Park Authority, Crofting Commission, Scottish Forestry, Forestry and Land Scotland, Scottish Environment Protection Agency, NatureScot and Scottish Land Commission)
- Housing – housing policy, Scottish Housing Regulator, affordable homes, homelessness and homelessness legislation, child poverty, security of tenure, energy efficiency, homeownership, short assured tenancy, rented housing and rent control, Town Centre First, social rents, private sector housing security, Tenancy deposit schemes, Scottish Social Housing Charter and the Scottish Housing Quality Standard[18]
- Accountant in Bankruptcy
- Agriculture, forestry and fisheries – most aspects of animal welfare, but not including animal testing and research
- Sport and the arts – Creative Scotland, the National Gallery of Scotland, library and museum collections, the National Museum of Scotland, national performing companies and SportScotland, the national agency for sport
- Consumer advocacy and advice
- Tourism – VisitScotland and promotion of major events in Scotland
- Economic development
- Freedom of Information (FOI) requests
Subsequently, the Scotland Acts of 2012 and 2016 transferred powers over:[19][20]
- Some taxation powers – full control of Income Tax on income earned through employment, Land and Buildings Transaction Tax, Landfill Tax, Aggregates Levy, Air Departure Tax, Revenue Scotland
- Drink driving limits
- Air weapons
- Additional borrowing powers, up to the sum of £5 billion
- Transport police in Scotland
- Road signs, speed limits and abortion rights in Scotland
- Powers over Income Tax rates and bands on non-savings and non-dividend income
- Scottish Parliament and local authority elections
- Some social security powers (Adult Disability Payment, Pension Age Disability Payment, Funeral Support Payment, Carer Support Payment, Young Carer Grant, Job Start Payment, Winter Heating Payment)
- Crown Estate of Scotland – management of the Crown Estate's economic assets in Scotland
- Some aspects of the benefits system – Best Start Grant, Carer's Allowance Supplement, Child Disability Payment, Child Winter Heating Assistance, Funeral Support Payment, Universal Credit (although this is remains a reserved benefit, some powers over how it is paid have been devolved to the Scottish Parliament)
- Extended powers over Employment Support and the housing aspect of Universal Credit
- Some aspects of the energy network in Scotland – renewable energy, energy efficiency and onshore oil and gas licensing
- The right to receive half of the VAT raised in Scotland.[21]
- Some aspects of equality legislation in Scotland
- Gaming machine licensing
The 1998 Act also provided for orders to be made allowing Scottish Ministers to exercise powers of UK Government ministers in areas that remain reserved to the Parliament of the United Kingdom. Equally the Act allows for the Scottish Ministers to transfer functions to the UK Government ministers, or for particular "agency arrangements". This executive devolution means that the powers of the Scottish Ministers and the Scottish Parliament are not identical.[22]
The members of the Scottish government have substantial influence over legislation in Scotland, putting forward the majority of bills that are successful in becoming Acts of the Scottish Parliament.[23]
Devolved powers in Wales
Following the "yes" vote in the referendum on further law-making powers for the assembly on 3 March 2011, the Welsh Government is now entitled to propose bills to the National Assembly for Wales on subjects within 20 fields of policy. Subject to limitations prescribed by the Government of Wales Act 2006, Acts of the National Assembly may make any provision that could be made by Act of Parliament. The 20 areas of responsibility devolved to the National Assembly for Wales (and within which Welsh ministers exercise executive functions) are:
The Government of Wales Act 2006 updated the list of fields, as follows:[24]
- agriculture, fisheries, forestry and rural development
- ancient monuments and historic buildings
- culture
- economic development
- education and training
- environment
- fire and rescue services and promotion of fire safety
- food
- health and health services
- highways and transport
- housing
- local government
- the National Assembly for Wales
- public administration
- social welfare
- sport and recreation
- tourism
- town and country planning
- water and flood defence
- the Welsh language
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.[25]
Comparison between Scottish and Welsh powers
Specific reservations cover policy areas which can only be regulated by Westminster, listed under 'heads':
The reserved matters continue to be controversial in some quarters Script error: No such module "Unsubst". 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.
Northern Ireland
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Devolved powers in Northern Ireland
- Health and social services
- Education
- Employment and skills
- Agriculture
- Social security
- Pensions and child support
- Housing
- Economic development
- Local government
- Environmental issues, including planning
- Transport
- Culture and sport
- The Northern Ireland Civil Service
- Equal opportunities
- Justice and policing
The Hillsborough Castle Agreement[29] on 5 February 2010 resulted in the following reserved powers being transferred to the Northern Ireland Assembly on 12 April 2010:[30]
- criminal law
- policing
- prosecution
- public order
- courts
- prisons and probation
Reserved (excepted) matters
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:[31]
- the Crown
- the Union with England, Scotland and Wales
- the making of peace or war
- the armed forces
- treaties or any relations with foreign states or dominions
- naturalization
- external trade
- navigation (including merchant shipping)
- submarine cables
- wireless telegraphy
- aerial navigation
- lighthouses
- currency
- copyright
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:
Excepted matters are outlined in Schedule 2 of the Northern Ireland Act 1998:[32]
- the Crown
- Parliament of the United Kingdom
- international relations
- international development
- defence
- weapons of mass destruction
- honours
- treason
- immigration and nationality
- taxation
- national insurance
- elections
- currency
- national security
- nuclear energy
- space
Reserved matters are outlined in Schedule 3 of the Northern Ireland Act 1998:[33]
- navigation (including merchant shipping)
- civil aviation
- The foreshore, sea bed and subsoil and their natural resources
- postal services
- import and export controls, external trade
- national minimum wage
- financial services
- financial markets
- intellectual property
- units of measurement
- telecommunications, broadcasting, internet services
- The National Lottery
- xenotransplantation
- surrogacy
- human fertilisation and embryology
- human genetics
- consumer safety in relation to goods
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.
Some policing and justice powers remain reserved to Westminster:[34]
- the prerogative of mercy in terrorism cases
- drug classification
- the National Crime Agency
- accommodation of prisoners in separated conditions
- parades
- security of explosives
A number of policing and justice powers remain excepted matters and were not devolved. These include:
- extradition (as an international relations matter)
- military justice (as a defence matter)
- immigration
- national security (including intelligence services)
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.)
History of Northern Irish devolution
The Parliament of Northern Ireland was suspended on 30 March 1972 by the Northern Ireland (Temporary Provisions) Act 1972,[35] with Stormont's legislative powers being transferred to the Queen in Council.
The Parliament of Northern Ireland was abolished outright by the Northern Ireland Constitution Act 1973;[36] 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,[37] having only passed two Measures.Script error: No such module "Unsubst".
The Assembly was dissolved under the Northern Ireland Act 1974,[38][39] 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,[40] under the Northern Ireland Act 1998, following the Belfast Agreement of 10 April 1998.
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 UK Parliament to provide consistency across the United Kingdom.[41]
Common devolved and reserved powers
Devolved
- agriculture, fisheries, forestry and rural development
- borrowing powers (Scotland only)
- culture
- the Crown Estate (Scotland only)
- economic development
- education and training
- environment
- fire and rescue services and promotion of fire safety
- food
- health and health services
- housing
- justice and policing (in Scotland & Northern Ireland only)
- local government
- public administration
- social welfare
- sport and recreation
- tourism
- town and country planning
- water and flood defence
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:[26][27]
- the Crown
- the constitutional matters listed in Schedule 5 of the 1998 Act
- the UK Parliament
- registration and funding of political parties
- the making of peace or war
- international relations and treaties
- international development
- international trade
- the Civil Service of the United Kingdom
- defence
- treason
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.
References
External links
Legislation
Official guidance (published by the Cabinet Office)
- Devolution Guidance
- Devolution settlement: Scotland
- Northern Ireland: What is Devolved?
- Wales: What is Devolved?
Analysis
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