Devolved, reserved and excepted matters
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 assemblies of Scotland, Wales and Northern Ireland, while reserved matters and excepted matters are the areas where the Parliament retains exclusive power to legislate.
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 Edit
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
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 Edit
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 Edit
Devolved Edit
- agriculture, fisheries, forestry and rural development
- culture
- 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 Edit
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]
- 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.
Specific reservations cover policy areas which can only be regulated by Westminster, listed under 'heads':
| Head | Scotland[6] | Wales[7] |
|---|---|---|
| Head A: Financial and economic matters | ||
| Fiscal, economic and monetary policy | Reserved | Reserved |
| The currency | Reserved | Reserved |
| Financial services and financial markets | Reserved | Reserved |
| Money laundering | Reserved | Reserved |
| Distribution of money from dormant bank accounts | Devolved | Reserved |
| Head B: Home affairs | ||
| Elections to the House of Commons | Reserved | Reserved |
| Emergency powers | Reserved | Reserved |
| Immigration and nationality | Reserved | Reserved |
| Extradition | Reserved | Reserved |
| National security and counter-terrorism | Reserved | Reserved |
| Policing, criminal investigations and private security | Devolved | Reserved |
| Anti-social behaviour and public order | Devolved | Reserved |
| Illicit drugs | Reserved | Reserved |
| Firearms | Reserved | Reserved |
| Air gun licensing | Devolved | Reserved |
| Betting, gaming and lotteries | Reserved | Reserved |
| Knives | Devolved | Reserved |
| Alcohol | Devolved | Reserved |
| Hunting with dogs and dangerous dogs | Devolved | Reserved |
| Prostitution, modern slavery | Devolved | Reserved |
| Film classification | Reserved | Reserved |
| Scientific procedures on live animals | Reserved | Reserved |
| Access to information | Reserved | Reserved[note 1] |
| Data protection | Reserved | Reserved |
| Lieutenancies | Reserved | Reserved |
| Charities | Devolved | Reserved |
| Head C: Trade and industry | ||
| Regulation of businesses, insolvency, competition law | Mostly reserved[note 2] | Reserved |
| Copyright and intellectual property | Reserved | Reserved |
| Import and export control | Reserved | Reserved |
| Sea fishing outside the Scottish zone | Reserved | — |
| Customer protection, product standards and product safety | Reserved | Reserved |
| Consumer advocacy and advice | Devolved | Reserved |
| Weights and measures | Reserved | Reserved |
| Telecommunications and postal services | Reserved | Reserved |
| Research councils | Reserved | Reserved |
| Industrial development and protection of trading interests | Reserved | Reserved |
| Water and sewerage outside Wales | — | Reserved |
| Pubs Code Regulations | Devolved | Reserved |
| Sunday trading | Devolved | Reserved |
| Head D: Energy | ||
| Electricity | Reserved | Reserved |
| Oil and gas, coal and nuclear energy | Reserved | Reserved |
| Heating and cooling | Devolved | Reserved |
| Energy efficiency | Reserved | Reserved |
| Head E: Transport | ||
| Traffic, vehicle and driver regulation | Reserved | Reserved |
| Train services | Partially devolved[note 3] | Reserved |
| Policing of railways and railway property | Devolved | Reserved |
| Navigation, shipping regulation and coastguard | Reserved | Reserved |
| Ports, harbours and shipping services outside Scotland or Wales | Reserved | Reserved |
| Air transport | Reserved | Reserved |
| Head F: Social security | ||
| National Insurance, social security schemes | Mostly reserved[note 4] | Reserved |
| Child support | Reserved | Reserved |
| Occupational, personal and war pensions | Reserved | Reserved |
| Public sector compensation | Devolved | Reserved |
| Head G: Regulation of the professions | ||
| Regulation of architects and auditors | Reserved | Reserved |
| Regulation of the health professions | Reserved | Reserved |
| Head H: Employment | ||
| Employment and industrial relations | Reserved | Reserved |
| Health and safety | Reserved | Reserved[note 5] |
| Industrial training boards | Devolved | Reserved |
| Job search and support | Reserved | Reserved |
| Head J: Health and medicines | ||
| Abortion | Devolved | Reserved |
| Xenotransplantation | Reserved | Reserved |
| Embryology, surrogacy and human genetics | Reserved | Reserved |
| Medicines, medical supplies and poisons | Reserved | Reserved[note 6] |
| Welfare foods | Devolved | Reserved |
| Head K: Media and culture | ||
| Broadcasting | Reserved | Reserved |
| Public lending right | Reserved | Reserved |
| Government Indemnity Scheme for cultural objects on loan | Reserved | Reserved |
| Safety of sports grounds | Devolved | Reserved |
| (Wales only) Part 1: The Constitution | ||
| The Crown Estate | Devolved | Reserved |
| (Wales only) Head L: Justice | ||
| The legal profession, legal services and legal aid | Devolved | Reserved |
| Coroners | Devolved[note 7] | Reserved |
| Arbitration | Devolved | Reserved |
| Mental capacity | Devolved | Reserved |
| Personal data | Devolved | Reserved |
| Public sector information and public records | Devolved | Reserved |
| Compensation for persons affected by crime | Devolved | Reserved |
| Prisons and offender management | Devolved | Reserved |
| Marriage, family relationships, matters concerning children | Devolved | Reserved |
| Gender recognition | De jure devolved; de facto reserved[note 8] | Reserved |
| Registration of births, deaths and places of worship | Devolved | Reserved |
| (Wales only) Head M: Land and Agricultural Assets | ||
| Registration of land, agricultural charges and debentures | Devolved | Reserved |
| Certain powers relating to infrastructure planning, building regulation on Crown land, and land compensation | Devolved | Reserved |
| Head L (Scotland) / Head N (Wales): Miscellaneous | ||
| Judicial salaries[note 9] | Reserved | Reserved |
| Equal opportunities | Reserved | Reserved |
| Control of nuclear, biological and chemical weapons | Reserved | Reserved |
| The Ordnance Survey | Reserved | Reserved |
| Time and calendars | Reserved | Reserved |
| Bank holidays | Devolved | Reserved |
| Outer space | Reserved | Reserved |
| Antarctica | Reserved | Reserved |
| Deep sea mining | Devolved | Reserved |
- ^ Appears under Head L in the Wales Act.
- ^ The Scotland Act contains numerous exceptions to the reserved powers concerning insolvency.
- ^ The construction of railways and the franchising of passenger services is devolved in Scotland.
- ^ 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.
- ^ Appears under Head J in the Wales Act.
- ^ The matter of poisons appears under Head B in the Wales Act.
- ^ There are no coroners in Scotland. Instead, deaths that need to be investigated are reported to the procurator fiscal.
- ^ Although gender recognition is not explicitly reserved under the Scotland Acts, the circumstances regarding the 2023 veto of the Gender Recognition Reform (Scotland) Bill indicate that it is unlikely that the Westminster government will consent to the Scottish Parliament making legislation in this area.
- ^ 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 Edit
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 Edit
The Government of Wales Act 1998 lists the following fields to be transferred to the National Assembly for Wales:[8]
- agriculture, forestry, fisheries and food
- ancient monuments and historic buildings
- culture (including museums, galleries and libraries)
- economic development
- education and training
- the environment
- health and health services
- highways
- housing
- industry
- local government
- social services
- sport and recreation
- tourism
- town and country planning
- transport
- water and flood defence
- the Welsh language
Government of Wales Act 2006 Edit
The Government of Wales Act 2006 updated the list of fields, as follows:[9]
- 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.[10]
Northern Ireland Edit
Government of Ireland Act 1920 Edit
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:[11]
- 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:
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 Edit
The Parliament of Northern Ireland was suspended on 30 March 1972 by the Northern Ireland (Temporary Provisions) Act 1972,[12] with Stormont's legislative powers being transferred to the Queen in Council.
Northern Ireland Constitution Act 1973 Edit
The Parliament of Northern Ireland was abolished outright by the Northern Ireland Constitution Act 1973;[13] 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.[citation needed]
Direct rule again Edit
The Assembly was abolished under the Northern Ireland Act 1974,[14] 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 Edit
List of key excepted matters Edit
Excepted matters are outlined in Schedule 2 of the Northern Ireland Act 1998:[15]
- the Crown
- Parliament
- international relations
- international development
- defence
- weapons of mass destruction
- honours
- treason
- immigration and nationality
- taxation
- national insurance
- elections
- currency
- national security
- nuclear energy
- space
List of key reserved matters Edit
Reserved matters are outlined in Schedule 3 of the Northern Ireland Act 1998:[16]
- 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
Policing and justice Edit
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[17] on 5 February 2010 resulted in the following reserved powers being transferred to the Northern Ireland Assembly on 12 April 2010:[18]
- criminal law
- policing
- prosecution
- public order
- courts
- prisons and probation
Some policing and justice powers remain reserved to Westminster:[19]
- the prerogative of mercy in terrorism cases
- drug classification
- the Serious Organised 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)
Parity Edit
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.[20]
References Edit
- ^ a b "Sewel Convention". Institute for Government.
- ^ "Scotland Act 1998".
- ^ "Scotland Act 1998".
- ^ "Scotland Act 1998".
- ^ "Scotland Act 1998".
- ^ a b "Scotland Act 1998: Schedule 5", legislation.gov.uk, The National Archives, 1998 c. 46 (sch. 5)
- ^ a b "Government of Wales Act 2006: Schedule 7A", legislation.gov.uk, The National Archives, 2006 c. 32 (sch. 7A)
- ^ "Government of Wales Act 1998".
- ^ "Government of Wales Act 2006".
- ^ . Archived from the original on 20 November 2010.
- ^ "Government of Ireland Act 1920 (as assented to)". www.bailii.org.
- ^ "CAIN: HMSO: Northern Ireland (Temporary Provisions) Act 1972". cain.ulster.ac.uk.
- ^ "Northern Ireland Constitution Act 1973 c.36". www.bailii.org.
- ^ Northern Ireland Act 1974
- ^ "Northern Ireland Act 1998".
- ^ "Northern Ireland Act 1998".
- ^ "Hillsborough Castle Agreement 2010".
- ^ "The Northern Ireland Act 1998 (Amendment of Schedule 3) Order 2010".
- ^ . Archived from the original on 16 December 2010.
- ^ "Northern Ireland Act 1998".
External links Edit
Legislation Edit
- Text of the Scotland Act 1998 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.
- Text of the Northern Ireland Act 1998 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.
- Text of the Government of Wales Act as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.
- Text of the Government of Wales Act 2006 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.
Official guidance (published by the Cabinet Office) Edit
- Devolution Guidance
- Devolution settlement: Scotland
- Northern Ireland: What is Devolved?
- Wales: What is Devolved?
Analysis Edit
- Constitution Unit, University College London