Devolved, reserved and excepted matters

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.

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]

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':

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:^[9]

• 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:^[10]

• 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.^[11]

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:^[12]

• 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:

• Government of Ireland Bill 1886
• Government of Ireland Bill 1893
• Government of Ireland Act 1914

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,^[13] 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;^[14] 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,^[15] having only passed two Measures.^{[citation needed]}

Direct rule again edit

The Assembly was dissolved under the Northern Ireland Act 1974,^[16][17] 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,^[18] 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:^[19]

• 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:^[20]

• 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^[21] on 5 February 2010 resulted in the following reserved powers being transferred to the Northern Ireland Assembly on 12 April 2010:^[22]

• criminal law
• policing
• prosecution
• public order
• courts
• prisons and probation

Some policing and justice powers remain reservedto Westminster:^[23]

• 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)

Parity edit

Northern Ireland has parity with Great Britain in three areas:

• social security
• child support
• pensions

Policy in these areas is technically devolved but, in practice, follows policy set by the Westminster Parliament to provide consistency across the United Kingdom.^[24]

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
• Devolution and Constitutional Change Programme