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Devolved, reserved and excepted matters

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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 30 of the Canadian Charter of Rights and Freedoms.

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.

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

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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:

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

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Scotland
 
Wales

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

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Devolved

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Reserved

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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]

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 Devolved[note 8][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
  1. ^ Appears under Head L in the Wales Act.
  2. ^ The Scotland Act contains numerous exceptions to the reserved powers concerning insolvency.
  3. ^ The construction of railways and the franchising of passenger services is devolved in Scotland.
  4. ^ 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.
  5. ^ Appears under Head J in the Wales Act.
  6. ^ The matter of poisons appears under Head B in the Wales Act.
  7. ^ There are no coroners in Scotland. Instead, deaths that need to be investigated are reported to the procurator fiscal.
  8. ^ Gender recognition is not explicitly reserved under the Scotland Acts. However, in 2023 the Secretary of State vetoed the Gender Recognition Reform (Scotland) Bill under Section 35 of the 1998 Act on the grounds that it affected the operation of the Equality Act 2010, which is reserved.
  9. ^ 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

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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

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The Government of Wales Act 1998 lists the following fields to be transferred to the National Assembly for Wales:[9]

Government of Wales Act 2006

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The Government of Wales Act 2006 updated the list of fields, as follows:[10]

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]

Northern Ireland

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Government of Ireland Act 1920

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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]

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

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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

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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

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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

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List of key excepted matters

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Excepted matters are outlined in Schedule 2 of the Northern Ireland Act 1998:[19]

List of key reserved matters

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Reserved matters are outlined in Schedule 3 of the Northern Ireland Act 1998:[20]

Policing and justice

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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]

Some policing and justice powers remain reserved to Westminster:[23]

A number of policing and justice powers remain excepted matters and were not devolved. These include:

Parity

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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.[24]

References

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  1. ^ a b "Sewel Convention". Institute for Government. 16 January 2018.
  2. ^ "Scotland Act 1998".
  3. ^ "Scotland Act 1998".
  4. ^ "Scotland Act 1998".
  5. ^ "Scotland Act 1998".
  6. ^ a b "Scotland Act 1998: Schedule 5", legislation.gov.uk, The National Archives, 1998 c. 46 (sch. 5)
  7. ^ a b "Government of Wales Act 2006: Schedule 7A", legislation.gov.uk, The National Archives, 2006 c. 32 (sch. 7A)
  8. ^ The Secretary of State's veto and the Gender Recognition Reform (Scotland) Bill (Report). 11 December 2023.
  9. ^ "Government of Wales Act 1998".
  10. ^ "Government of Wales Act 2006".
  11. ^ "Government of Wales Act 2006, Schedule 5 (as amended)". Archived from the original on 20 November 2010.
  12. ^ "Government of Ireland Act 1920 (1920 c. 67), section 4: Legislative powers of Irish Parliaments (as enacted)". legislation.gov.uk. The National Archives. Retrieved 27 December 2023.
  13. ^ "Northern Ireland (Temporary Provisions) Act 1972 (1972 c. 22), section 1: Exercise of executive and legislative powers in N.I. (as enacted)". legislation.gov.uk. The National Archives. Retrieved 27 December 2023.
  14. ^ "Northern Ireland Constitution Act 1973 (1973 c. 36), section 31: Abolition of Parliament of Northern Ireland (as enacted)". legislation.gov.uk. The National Archives. Retrieved 27 December 2023.
  15. ^ "The Northern Ireland Assembly (Prorogation) Order 1974", legislation.gov.uk, The National Archives, 29 May 1974, SI 1974/926, retrieved 27 December 2023
  16. ^ "Northern Ireland Act 1974 (1974 c. 28), section 1: Dissolution and prorogation of existing Assembly... (as enacted)". legislation.gov.uk. The National Archives. Retrieved 27 December 2023.
  17. ^ "The Northern Ireland Assembly (Dissolution) Order 1975", legislation.gov.uk, The National Archives, 18 March 1975, SI 1975/422, retrieved 27 December 2023
  18. ^ "The Northern Ireland Act 1998 (Commencement No. 5) Order 1999", legislation.gov.uk, The National Archives, 30 November 1999, SI 1999/3209, retrieved 27 December 2023
  19. ^ "Northern Ireland Act 1998: Schedule 2", legislation.gov.uk, The National Archives, 19 November 1998, 1998 c. 47 (sch. 2), retrieved 27 December 2023
  20. ^ "Northern Ireland Act 1998: Schedule 3", legislation.gov.uk, The National Archives, 19 November 1998, 1998 c. 47 (sch. 3), retrieved 27 December 2023
  21. ^ "Hillsborough Castle Agreement 2010".
  22. ^ "The Northern Ireland Act 1998 (Amendment of Schedule 3) Order 2010", legislation.gov.uk, The National Archives, 31 March 2010, SI 2010/977, retrieved 27 December 2023
  23. ^ "Policing and Justice motion, Northern ireland Assembly, 12 April 2010". Archived from the original on 16 December 2010.
  24. ^ "Northern Ireland Act 1998 (1998 c. 47), Part VIII: Miscellaneous". legislation.gov.uk. The National Archives. Retrieved 27 December 2023.
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Legislation

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Official guidance (published by the Cabinet Office)

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Analysis

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