Reserved and excepted matters

This article is about devolution in the United Kingdom. For other countries, see Reserved powers.
"Section 30" redirects here. For the Canadian law, see Section Thirty of the Canadian Charter of Rights and Freedoms.
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In the United Kingdom reserved matters and excepted matters are the areas of government policy where the UK Parliament had kept the power (jurisdiction) to make laws (legislate) in Scotland, Northern Ireland and Wales.

Each of these countries has been granted devolution within the UK; therefore some power has been delegated to them from the central government at Westminster and some has been withheld.

They are also known as reserved matters and act as a guide for which areas are devolved to those three countries and which are not. The powers are set out in three main laws for each of those countries and subsequent amendments which further devolved powers to the respective legislatures:

In Scotland, a list of matters is explicitly reserved in the Scotland Act. Any matter not explicitly listed in the Act is implicitly devolved to the Scottish Parliament. Reserved powers can be transferred from Westminster to Scotland under Section 30 of the Scotland Act 1998, for example in the Edinburgh Agreement, 2012.

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 Wales, by contrast, a list of matters is explicitly devolved to the National Assembly for Wales and any matter not listed in the Act is implicitly reserved to Westminster.

Scotland

The Scottish Parliament was created by the Scotland Act 1998, passed by the Parliament of the United Kingdom. This Act sets out the matters still dealt with by the Westminster parliament, referred to as reserved matters.

The legal ability of the Scottish Parliament to legislate (its "legislative competence") on a matter is largely determined by whether it is reserved or not.[1][2][3][4]

Anything not listed as a specific reserved matter in the Scotland Act is automatically devolved to Scotland, including:

This is one of the key differences between the Scotland Act 1998 and the never-implemented Scotland Act 1978.

List of reserved matters

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:[5]

the Crown
the Union with England, Northern Ireland and Wales
the UK Parliament
the existence of the (criminal) High Court of Justiciary
the existence of the (civil) Court of Session
international development
the regulation of international trade

Specific reservations cover particular areas of social and economic policy which are reserved to Westminster, listed under 11 'heads':[6]

fiscal, economic and monetary policy
currency
financial services
financial markets
money laundering
drug abuse
data protection and access to information
elections
firearms
film classification
immigration and nationality
scientific procedures on live animals
national security and counter-terrorism
betting, gaming and lotteries
emergency powers
extradition
lieutenancies
business associations
insolvency
competition
intellectual property
import and export control
sea fishing outside the Scottish zone
customer protection
product standards, safety and liability
weights and measures
telecommunications
postal services
research councils
electricity
oil and gas
coal
nuclear energy
energy efficiency
marine transport
air transport
social security schemes
child support
pensions
architect
health professions
auditor
employment and industrial relations
health and safety
abortion
xenotransplantation
embryology, surrogacy and human genetics
medicines, medical supplies and poisons
welfare foods
broadcasting
public lending right
judicial salaries
equal opportunities
control of weapons of mass destruction
Ordnance Survey
time
outer space

Executive devolution

The executive powers of Scottish Government ministers generally follow the same boundaries as the legislative competence of the Scottish Parliament i.e. if the Parliament can legislate on a matter, then any ministerial powers under statute or royal prerogative are exercised by the Scottish Ministers. However, it is also possible for the Scottish Ministers to be given powers in relation to reserved matters, a process known as executive devolution.

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

Northern Ireland

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:[7]

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,[8] 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;[9] 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 30 May 1974 having only passed two Measures.

Direct rule again

The Assembly was abolished under the Northern Ireland Act 1974,[10] 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 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:[11]

List of key reserved matters

Reserved matters are outlined in Schedule 3 of the Northern Ireland Act 1998:[12]

Devolution of policing and justice

After 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 after the Belfast Agreement.

The Hillsborough Castle Agreement [13] on 5 February 2010 resulted in the following reserved powers being transferred to the Northern Ireland Assembly on 12 April 2010:[14]

Some policing and justice powers remain reserved to Westminster:[15]

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.[16]

Wales

Transferred matters for Wales are outlined in the Government of Wales Act 1998 and 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:[17]

Government of Wales Act 2006

The Government of Wales Act 2006 updated the list of fields, as follows:[18]

Schedule 5 to the 2006 Act may be amended to add specific matters to the broad subject fields, thereby extending the legislative competence of the Assembly.[19]

References

  1. ↑ Scotland Act 1998, s. 29
  2. ↑ Scotland Act 1998, s. 30
  3. ↑ Scotland Act 1998, sch. 4
  4. ↑ Scotland Act 1998, sch. 5
  5. ↑ Scotland Act 1998, Schedule 5, Part I
  6. ↑ Scotland Act 1998, Schedule 5, Part II
  7. ↑ Government of Ireland Act 1920, s. 3
  8. ↑ Northern Ireland (Temporary Provisions) Act 1972
  9. ↑ Northern Ireland Constitution Act 1973
  10. ↑ Northern Ireland Act 1974
  11. ↑ Northern Ireland Act 1998, Schedule 2
  12. ↑ Northern Ireland Act 1998, Schedule 3
  13. ↑ Hillsborough Castle Agreement 2010
  14. ↑ Northern Ireland Act 1998 (Amendment of Schedule 3) Order 2010
  15. ↑ Policing and Justice motion, Northern ireland Assembly, 12 April 2010
  16. ↑ Northern Ireland Act 1998, Part VIII, Social security, child support and pensions
  17. ↑ Government of Wales Act 1998, Schedule 2
  18. ↑ Government of Wales Act 2006, Schedule 5
  19. ↑ Government of Wales Act 2006, Schedule 5 (as amended)

Legislation

Official guidance (published by the Cabinet Office)

Analysis

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