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Abstract
Devolution was expected to reduce the legislative burden on Westminster and to improve the quality of legislation applying to the devolved territories. But post–devolution Westminster is still an overburdened legislative factory, producing more legislation for Scotland, Wales and Northern Ireland than their devolved institutions. One half of all bills passed at Westminster extend to the parts rather than the whole of the UK, but devolution issues in these bills are poorly scrutinised. In the light of devolution, territorial issues matter more, not less. Left to its own devices, Whitehall is not going to improve matters. Parliament can help to develop a set of principles to apply to devolution issues in legislation by working in closer partnership with Whitehall and the devolved institutions. Because of the fragmentation of the territorial committees in the House of Commons, leadership is more likely to come from the House of Lords.
Notes
1. This article draws on the research findings of a four-year research project on ‘The Law and Devolution’ funded by the ESRC under their Devolution research programme (award L219252015). The project involved collaboration with constitutional lawyers in Scotland, Wales and Northern Ireland, and is reported in R. Hazell and R. Rawlings (eds.), Devolution, Law Making and the Constitution (Exeter: Imprint Academic, 2005).
2. J. Griffith and M. Ryle, Parliament: Functions, Practice and Procedures, 2nd edn by R. Blackburn and A. Kennon (London: Sweet and Maxwell, 2003) paras. 6–232, 6–235 to 6–236.
3. Legislation scrutinised in the Northern Ireland Grand Committee generally takes the form of draft Orders in Council. Northern Ireland bills generally take their second reading on the floor of the House.
4. Report of the Royal Commission on the Constitution, chair Lord Kilbrandon, Cmnd 5460-I, 1973.
5. Making the Law, Report of the Hansard Society Commission on the Legislative Process (London: Hansard Society, 1992), pp.11–12.
6. It had increased to 4,073 pages of public and general Acts, compared with 720 in 1950. 2003 was a record year in which the statute book first exceeded 4000 pages. House of Commons Library, ‘Pages of Acts and Statutory Instruments, 1911 to 2003’.
7. The Scottish Parliament in its first four years passed an average of 15 bills a year.
8. Lords Constitution Committee, Devolution: Its Effect on the Practice of Legislation at Westminster, 15th report of 2003–04, HL 192, November 2004, Paper by Prof C Himsworth, paras 22–26. T. Jones and J. Williams, ‘Wales as a Jurisdiction’ Public Law, (2004) pp.95–99.
9. Report of the Commission on the Powers and Electoral Arrangements of the National Assembly for Wales, The Stationery Office, March 2004, Annex 5.
10. There may also be some ‘devolution duplication’, but this could only be detected by exhaustive analysis of the individual Statutory Instruments.
11. See .7 in K. Patchett, ‘Legislating for Wales by Westminster and Whitehall’ in R. Hazell and R. Rawlings (eds.), Devolution, Law Making, and the Constitution, p.123. These findings are based upon research for the Constitution Unit by Marie Navarro, Cardiff University.
12. In the 5 years 1998 to 2002, there were on average about 850 regulations each year, 100 directives and 650 decisions applicable to the UK. House of Commons Library, EC Legislation, SN/IA/2888, February 2004, p.6. Vaughne Miller's excellent Library Note is also the source of what follows.
13. House of Commons Library, EC Legislation, SN/IA/2888, February 2004, p.11.
14. R. Rogers and R. Walters, How Parliament Works (London: Pearson Longman, 5th edition, 2004) pp. 357–358.
15. Cabinet Office Memorandum to Lords Constitution Committee inquiry into Devolution: Inter Institutional Relations in the UK, Evidence volume, HL 147 of 2001–02, July 2002, p.21 para 59.
16. Memorandum by Lord Steel to Lords Constitution Committee, Devolution: Inter-Institutional Relations in the UK, p.200 para 20.
17. Assembly European and External Affairs Committee, paper of 9 Oct 2003 on ‘General Scrutiny of EU Legislation and the Constitution for Europe’, para 4. But in 2004 a sifting system was introduced, supplied by the Members' Research and Committee Services: see Assembly European Committee paper of 11 Nov 2004 on EU legislation scrutiny in Assembly Committees, Annex A.
18. It relies on the Members' Research and Committee Services to do so: see Assembly European Committee paper of 11 Nov 2004 on EU legislation scrutiny in Assembly Committees, para 23.
19. First established on a temporary basis in 1894 and 1895 and then becoming a permanent fixture in 1907, the Standing Committee on Scottish Bills became the Scottish Standing Committee in 1948 and the Scottish Grand Committee in 1957.
20. Renamed the Northern Ireland Grand Committee in 1994. The Welsh and Northern Ireland Grand Committees consist of all the MPs sitting for Wales and Northern Ireland respectively. But the Welsh Grand can be supplemented by up to five other members, and the Northern Ireland Grand by up to 25. The Scottish Grand also used to contain other members until 1981. This widening of the membership can enable the participation of Ministers or shadow spokesmen when they do not have a constituency in the devolved territory.
21. The Scottish Grand Committee seems to have disappeared, since the committee has held no sittings since 2002–03. It last sat on 13 November 2003.
22. In the Commons second reading debate on the Northern Ireland Act 2000, which suspended the Northern Ireland Assembly, eight Northern Ireland MPs spoke compared with 23 from England, five from Scotland and one from Wales.
23. Occasionally a third Northern Ireland MP (Eddie McGrady of the SDLP) was allowed onto Standing Committee, on the tacit understanding that he counted as part of the Labour side and would support the government in any divisions.
24. Commons Procedure Committee, The Procedural Consequences of Devolution, 4th report of 1998–99, HC 185, May 1999.
25. House of Lords Constitution Committee, Devolution: Inter-Institutional Relations in the UK, HL 28, December 2002, paras 119–25; House of Commons Welsh Affairs Committee, The Primary Legislative Process as it affects Wales, HC 79, March 2003; Report of the Richard Commission on the Powers and Electoral Arrangements of the National Assembly for Wales, spring 2004, Chapters 5, 7 and 8.
26. Wales Office, Better Governance for Wales, Cm 6582, June 2005, para 3.5.
27. Notable exceptions are the Report of the Hansard Society Commission on the Legislative Process, Making the Law, and the follow up report, A. Brazier, (ed.), Parliament, Politics and Law Making, (London: Hansard Society, 2004) and the 1996 and 2000 reports of the Commons Procedure Committee on Delegated Legislation: HC 156 of 1995–96 and HC 48 of 1999–2000.
28. Liaison Committee, Shifting the Balance: Select Committees and the Executive, HC 50, 2002–03.
29. Report of the Hansard Society Commission on the Legislative Process, Making the Law.
30. Procedure Committee, Delegated Legislation, HC 152, 1995–96; Delegated Legislation, HC 48, 1999–2000.
31. Following recommendations by the Royal Commission on Reform of the House of Lords in 2000, and the Group on the Working of the House in 2002.
32. Lords Merits of Statutory Instruments Committee, Review of the Work of the Committee, 25th report of 2003–04, HL 206, November 2004.
33. The reason given is that ‘This is inevitable in that both Houses must take the same view on an SI, and amendable instruments would be like another class of bills going back and forth for both Houses to agree on any amendments’. Rogers and Walters, How Parliament Works, p.229.
34. Lords Constitution Committee, Parliament and the Legislative Process, 14th report of 2003–04, HL 173 para 35. The proposal builds on proposals made by Robin Cook MP, Leader of the House 2001–03.
35. B. Winetrobe, ‘A Partnership of the Parliaments? Scottish Law Making under the Sewel Convention at Westminster and Holyrood’ in Hazell and Rawlings (eds.), Devolution, Law Making and the Constitution. See also the Scottish Parliament Procedures Committee Inquiry into the Sewel Convention, 7th report of 2005, 5 October 2005.
36. This need not require much input from politicians. The devolved assemblies could learn from the operation of the scrutiny reserve procedure of the European Scrutiny Committee at Westminster, where the bulk of the sifting work is done rapidly by specialist committee staff.
37. Winetrobe, ‘A Partnership of Parliaments? Scottish Law Making under the Sewel Convention at Westminster and Holyrood’.
38. HL Paper 28, December 2002, para 146; HL Paper 173, October 2004, paras. 116–23.
39. Lords Constitution Committee, Parliament and the Legislative Process, 14th report of 2003–04, HL 173, October 2004.
40. D. Oliver, ‘Improving the Scrutiny of Bills: The Case for Standards and Checklists’ Public Law Summer 2006, pp.219–246.
41. The Memorandum of Understanding (Cm 5240, 2001) between the UK Government and devolved administrations says surprisingly little about legislation. It is not covered in the five supplementary agreements and in the main text of the Memorandum it is the subject of just one paragraph, which articulates the Sewel convention (para. 13).