Session 2008/2009

Fourth Report

COMMITTEE ON PROCEDURES

Inquiry into Legislative Consent Motions

TOGETHER WITH THE MINUTES OF PROCEEDINGS, WRITTEN SUBMISSIONS
AND THE MINUTES OF EVIDENCE RELATING TO THE REPORT

Ordered by The Committee on Procedures to be printed 15 September 2009
Report: 34/08/09R (Committee on Procedures)

Powers and Membership

Powers

The Committee on Procedures is a Standing Committee of the Northern Ireland Assembly established in accordance with paragraph 10 of Strand One of the Belfast Agreement and under Assembly Standing Order 54. The Committee has 11 Members including a Chairperson and Deputy Chairperson and a quorum of 5.

The Committee has the power to:

• Consider and review, on an ongoing basis, the Standing Orders and procedures of the Assembly;
• Initiate inquiries and publish reports;
• Update the Standing Orders of the Assembly for punctuation and grammar;
• Republish Standing Orders anually; and
• Call for persons and papers.

Membership

The Committee first met on 16 May 2007.

The membership of the Committee since its establishment on 9 May 2007 has been as follows:

Lord Morrow (Chairman)
Mr Mervyn Storey (Deputy Chairman)

Mr Francie Brolly
Mr Mickey Brady*
Mr David McClarty
Mr Sean Neeson
Mr Ken Robinson
Lord Browne
Mr Raymond McCartney
Mr Adrian McQuillan
Mr Declan O’Loan

*Mr Mickey Brady replaced Mr Willie Clarke as of 20 May 2008

Table of Contents

Report

List of Abbreviations

Executive Summary

Summary of Recommendations

Introduction

Consideration of Key Issues

Appendix 1:

Minutes of Proceedings Relating to the Report

Appendix 2:

Minutes of Evidence

Appendix 3:

Written Submissions

Appendix 4:

Northern Ireland Assembly Research Papers

Appendix 5:

Other papers

Abbreviations

DGN Devolution Guidance Note

LCM Legislative Consent Motion

LPS Legislative Programme Secretariat

MoU Memorandum of Understanding

NI Northern Ireland

OFMDFM Office of the First Minister and Deputy First Minister

OLC Office of Legislative Counsel

PMB Private Member’s Bill

Executive Summary

1. In agreeing to take forward this inquiry, the Committee on Procedures recognised that the current processes had been developed over time to meet circumstances. While they were adequate for purpose, there was potential to not only provide new and clearer guidance, but also to introduce processes which may encourage others to take a more active role.

2. Legislative consent relates to the convention that the UK Government would not normally legislate on devolved matters without first gaining the agreement of the devolved legislature – the Scottish Parliament, National Assembly for Wales or the Northern Ireland Assembly. This agreement is often referred to as the Sewel Convention.

3. This convention was never intended to be put into legislation but arrangements have been agreed between Westminster and the devolved administrations. In July 2000 a Memorandum of Understanding was agreed in the NI Assembly.

4. Detailed guidance has been produced by Westminster and this includes:-

‘If any provisions in the Bill relate to devolved matters, a Legislative Consent Motion will need to be secured in the devolved legislature. As the devolved administration cannot seek to promote a Legislative Consent Motion until the Bill has been introduced at Westminster, at this stage the Bill Minister will need to secure the devolved administration’s agreement in principle to promote the LCM.

‘UK Ministers should approach the Northern Ireland Administration. The approach should be made to the Northern Ireland Minister with lead responsibility for the policy area as it will be their responsibility to indicate the view of the Northern Ireland Assembly and to take whatever steps are appropriate to ascertain that view’.

5. Local guidance has been produced by OFMDFM to facilitate the taking forward of legislative consent motions within the Assembly.

6. Prior to the introduction of a bill at Westminster which contains provisions relevant to Northern Ireland, the NI Minister will consult with the Assembly committee on the policy content and on the principle of these provisions. The Minister will also seek agreement from the Executive to (i) the policy content of the provisions (ii) these provisions being carried in a Westminster bill and (iii) consent of the Assembly being sought.

7. Following consultation and subject to agreement, the NI Minister will confirm the Executive’s agreement to devolved provisions being carried in a Westminster bill to the Whitehall Minister.

8. Following the introduction of the bill at Westminster, the NI Minister will provide Executive colleagues and the relevant committee with details of the bill, highlighting and explaining the devolved provisions and giving notice of the intention to table the necessary legislative consent motion seeking the Assembly’s consent to the continued inclusion of the devolved provisions in the bill.

9. After the legislative consent motion has been agreed in the Assembly the Minister will confirm the Assembly’s decision to the respective Whitehall Minister who will keep his NI colleague informed of any proposed substantive amendments involving the devolved provisions during the bill’s passage through Westminster.

10. If the Assembly were to reject the motion it would be for Westminster to table amendments to the bill to remove those provisions which had not obtained the Assembly’s consent.

11. The Committee’s research has shown that very few members, other than those from the relevant committee, contribute to the debate on the legislative consent motion. Consequently a major focus of the inquiry was on how to improve better informing all MLAs of the issues at stake within the motion.

12. During its visit to Scotland the Committee was briefed on the background to the introduction of the relevant Standing Orders to Scotland; both the Scottish Parliament and National Assembly for Wales have introduced Standing Orders to address legislative consent motions.

13. At present the procedures in Northern Ireland around legislative consent motions are Executive driven and while most of those consulted were reasonably content with these procedures it was considered that formal Standing Orders would go some way to providing a degree of ownership to the Assembly. They would also clarify the process, ensure transparency and accountability and impose specific responsibilities.

14. The Committee learned of the arrangements that the Scottish Parliament has in place for early notification of potential legislative consent motions from the Scottish Government. After the UK Government’s proposed legislative programme is announced, the Scottish Government assesses which bills may require a legislative consent motion and informs the Parliament of these as soon as possible. The NI Executive has agreed to introduce a similar process to inform the Assembly.

15. The NI Executive has also agreed to the Committee’s proposal that an explanatory memorandum and draft legislative consent motion should be provided to all members within two weeks of a bill being introduced at Westminster.

16. Ideally, an Assembly committee is consulted twice – pre and post-introduction of the legislation in Westminster. In considering the responses from those Assembly committees with experience of legislative consent motions, the Committee on Procedures has no doubt that the role and input of committees are vital to the process.

17. In Scotland, Standing Orders require the relevant committee to consider and report on the legislative consent motion. The Committee on Procedures considered the advantages and disadvantages of an Assembly committee providing such a report on its findings on the issues within the explanatory memoranda and the legislative consent motions. It decided that a report would go some way to informing the later debate on the legislative consent motion.

18. The Committee also agreed that the legislative consent motion should not be tabled until after the committee report has been laid in the Business Office.

19. During its inquiry the Committee was informed that details of the agreed Scottish legislative consent motions are annotated next to the relevant bill’s documentation in Westminster. After consulting with the Clerk/Director General of the NI Assembly, it was agreed that a similar process would be taken forward for NI.

20. When agreeing a legislative consent motion, the Assembly is agreeing to very specific provisions within a Westminster bill. However, there are occasions when the bill is amended to such an extent as it passes through Westminster that agreement to a second legislative consent motion is required from the Assembly. In these circumstances, it was accepted that deadlines are likely to prevent any significant time for consultation with committees prior to debating the second legislative consent motion in the chamber.

21. While it would an exceptional occurrence, the Committee recognised that an individual member may submit a legislative consent motion. However, agreements between Westminster and the NI administration preclude Westminster taking account of a legislative consent motion, even if agreed by the Assembly, without the approval of the NI Executive and responsible Minister. The Committee has recommended that this issue should be addressed within the proposed Standing Orders.

22. The Committee considered in what circumstances a legislative consent motion would be required for a Private Member’s Bill and, if so, at what stage consultation with the Assembly committee should take place. In acknowledging the OFMDFM argument that taking action too early may result in significant nugatory work, the Committee was of the view that it would be better to be informed at a reasonably early stage rather than too late.

23. This report represents the outcome of the Committee’s inquiry into legislative consent motions. While the current processes are adequate, they are Executive-driven and the majority of Assembly members lack the information necessary to contribute effectively to the debates. Better information for members will bring better decision making. The Committee believes that adoption of its recommendations will bring about not only clarity, through new Standing Orders and processes, but an increased understanding of the issues.

Summary of Recommendations

Recommendation 1

The Committee recommends the introduction of Standing Orders to provide clarity and transparency on the procedures for legislative consent motions.

Recommendation 2

The Committee recommends that as soon as the proposed legislative programme at Westminster is known, the Executive should identify those bills which may require legislative consent motions within the Assembly and inform the relevant parties as early as possible.

Recommendation 3

The Committee recommends that an explanatory memorandum and draft legislative consent motion should be provided to all members within two weeks of a relevant bill being introduced at Westminster.

Recommendation 4

The Committee recommends that Standing Orders should provide for the relevant committee(s) to consider and report on the legislative consent motion.

Recommendation 5

The Committee recommends that the legislative consent motion should not be tabled until after the committee report has been laid in the Business Office.

Recommendation 6

The Committee recommends that arrangements be made for details of the legislative consent motions agreed in the Assembly to be annotated next to the relevant bills’ documentation in Westminster.

Recommendation 7

The Committee recommends that the proposed Standing Orders address the curtailed process when a Minister considers that a second legislative consent motion is required.

Recommendation 8

The Committee recommends that the proposed Standing Orders should contain provisions for a member to table a legislative consent motion.

Recommendation 9

In respect of a Private Member’s Bill which contains provisions relevant to Northern Ireland, the Committee recommends that the procedure in the proposed Standing Orders should begin within two weeks of the completion of the first amending stage in the House in which the Bill was introduced.

Introduction

1. The Committee on Procedures formally agreed on 3 February 2009 to undertake an inquiry into legislative consent motions in the Northern Ireland Assembly. The aims of the inquiry were to review and improve, where necessary, the procedures for dealing with legislative consent motions and to consider the need to introduce Standing Orders to govern these procedures.

2. The following terms of reference were agreed on 3 February 2009 -

• to identify those circumstances in which use of a legislative consent motion is considered appropriate;
• to review the processes through which legislative consent motions are introduced to the Assembly;
• to examine the arrangements for consultation with, and consideration and reporting by, committees of the proposed legislation and its outworkings;
• to consider the need to introduce a Standing Order to address the issues identified within the inquiry; and
• to report to the Assembly, making recommendations as necessary, on the findings of the Committee on Procedures.

3. The Committee agreed that the methodology for the inquiry should include -

• comparative research on legislative consent procedures elsewhere;
• taking oral evidence from a small number of informed witnesses;
• taking written submissions from those committees of the Assembly which have considered legislative consent motions, from the relevant departments and from the offices in the Westminster Parliament;
• collation of information on previous use of legislative consent motions within the Assembly; and
• a visit to the Scottish Parliament to discuss that legislature’s experiences of legislative consent motions.

4. Because of the nature of the inquiry and its likely focus on internal procedures, it was agreed not to place a public advertisement in the media.

5. Responses were received from the following committees which had previously dealt with legislative consent motions -

• Committee for Employment and Learning
• Committee for Finance and Personnel
• Committee for Social Development
• Committee for the Environment
• Committee for Health, Social Services and Public Safety

6. Responses were received the from following departments which had previously dealt with legislative consent motions -

• Employment and Learning
• Office of the First Minister and Deputy First Minister
• Enterprise, Trade and Investment
• Social Development
• Finance and Personnel
• Health, Social Services and Public Safety

7. On 3 March 2009, the Committee received a briefing from Assembly Research Service.

8. The role of the Legislative Programme Secretariat, OFMDFM, which is responsible for centrally managing the progress of legislative consent motions within departments, was explored by the Committee through consideration of a written submission and oral evidence, on 3 March 2009, from OFMDFM officials.

9. On 29 April 2009 members of the Committee visited the Scottish Parliament to seek views on its approach to legislative consent motions.

10. The Committee weighed up the issues arising from the evidence received from the various sources and carefully examined the procedures and practices in relation to legislative consent motions. The Committee’s consideration of each issue is covered separately in the report.

11. At its meeting on 15 September 2009 the Committee agreed its report on legislative consent motions and ordered the report to be printed.

Consideration of Key Issues

Background

1. Legislative consent relates to the convention that the UK Government would not normally legislate on devolved matters without first gaining the agreement of the devolved legislature – i.e. the Scottish Parliament, National Assembly for Wales or the Northern Ireland Assembly.

2. This agreement is often referred to as the Sewel Convention. The convention is based on a statement made by Lord Sewel when the Scotland Bill was going through Westminster. Lord Sewel stated that he “…would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament".

3. It was never intended that the convention referred to by Lord Sewel would be put into legislation. Instead, it was developed into a Memorandum of Understanding (MoU) between the UK Government and the devolved administrations. The MoU, issued as Command Paper 4806 in July 2000 and updated in Command Paper 5240 in December 2001, states:-

‘The United Kingdom Parliament retains authority to legislate on any issue, whether devolved or not. It is ultimately for Parliament to decide what use to make of that power. However, the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government.’

4. On 5 June 2000 the NI Assembly approved a motion which took note of the MoU and Supplementary Agreements between Her Majesty’s Government and the Northern Ireland Executive Committee.

The Sewel Convention in Northern Ireland

5. The Cabinet Office is responsible for issuing guidance to all Westminster departments on the processing of legislation through Parliament. In its guidance ‘Preparing a Bill for Introduction’ which deals with the devolved administrations of Northern Ireland, Scotland and Wales, Section 15 advises:-

‘If any provisions in the Bill relate to devolved matters, a Legislative Consent Motion will need to be secured in the devolved legislature. As the devolved administration cannot seek to promote a Legislative Consent Motion until the Bill has been introduced at Westminster, at this stage the Bill Minister will need to secure the devolved administration’s agreement in principle to promote the LCM.

The devolved administration would then be expected to secure the LCM before the Bill completes its final amending stage in the first House at Westminster (so that the Government could table amendments to the Bill to remove the clause, should the devolved administration not accept the LCM).

Legislation Committee will expect the devolved administrations to have been consulted in good time, and for all devolution issues to have been resolved before the Bill is approved for introduction to Parliament.’

6. Following on from this, the Ministry of Justice issued guidance, Devolution Guidance Note 8 (DGN 8), which deals specifically with procedures for post-devolution legislation affecting Northern Ireland. Paragraph 3 of DGN 8 includes the following:-

‘UK Ministers should approach the Northern Ireland Administration. The approach should be made to the Northern Ireland Minister with lead responsibility for the policy area as it will be their responsibility to indicate the view of the Northern Ireland Assembly and to take whatever steps are appropriate to ascertain that view, including, obtaining the prior agreement of the Northern Ireland Executive Committee to the proposed legislation and consulting with the relevant statutory Assembly Departmental Committee.

Departments bringing legislative proposals to LP Committee will be expected to address the need for consultation or consent as described in the following paragraphs. They should ensure that the Northern Ireland Administration – and, as appropriate, the Northern Ireland Office – is engaged from an early stage, so that any potential areas of difficulty are identified and addressed, and should allow sufficient time for this when planning their Bills’

7. The Legislative Programme Secretariat (LPS) of the OFMDFM has provided procedural guidance to NI departments.

8. Representatives from LPS came before the Committee on 3 March 2009 and, along with a further written response to outstanding questions, provided the Committee with detailed information on the processes as they are currently applied in Northern Ireland.

The Processes in Northern Ireland

9. Ideally, contact is made with the NI department at official level by the Whitehall department on the possibility and implications of a proposed Westminster bill legislating in a devolved area. This can happen in three circumstances:-

(a) where the provisions of a bill deal with substantive non-emergency transferred matters, eg, issues relating to the environment;

(b) where the provisions alter the legislative competence of the Assembly, eg, the proposed transfer of a matter that is currently not devolved,

(c) where the provisions alter the executive functions of NI Ministers or departments, eg, provides a Minister with an additional power/responsibility.

The Whitehall Minister will write to the relevant NI Minister offering to carry NI devolved provisions in the Westminster bill. The NI Minister will need to consider what the advantages are, if any, of the provisions relevant to Northern Ireland being taken forward in Westminster legislation in an area in which the Assembly itself could legislate.

10. Until the Westminster bill has been enacted (or the devolved provisions removed) the NI officials maintain close liaison with their Whitehall counterparts to ensure that the devolved provisions take full account of NI circumstances and their department’s policy position. At the same time, the NI department will comply with the same policy development requirements as if the bill were being taken through the Assembly, including consultation, impact assessments and consideration of the financial and budgetary implications. Where it can be agreed, the Whitehall department may carry out or co-ordinate some or all of this work on a UK-wide basis.

11. Prior to the introduction of the bill at Westminster, the NI Minister consults with the Assembly committee on the policy content and on the principle of the provisions being carried in a Westminster bill. The Minister will also seek agreement from the Executive to the policy content of the devolved provisions, to the provisions being carried in a Westminster bill and to consent by the Assembly being sought.

12. Following consultation with the Committee and consideration by the Executive, the NI Minister confirms the Executive’s agreement to devolved provisions being carried in a Westminster bill to the Whitehall Minister.

13. The department then drafts the legislative consent motion and sends it to LPS who consults with the Office of Legislative Counsel (OLC) and the Assembly’s Business Office on the terms of the motion.

14. Following the introduction of the bill at Westminster, the NI Minister writes to Executive colleagues and the committee to inform them about the details of the bill (i) highlighting the devolved provisions (ii) providing an explanation of the provisions as appropriate, and (iii) giving notice of the intention to lay the necessary legislative consent motion to seek the Assembly’s consent to the continued inclusion of the devolved provisions in the bill. The Minister should also provide an indication of the timescale for a decision by the Assembly.

15. If requested, the NI Minister or departmental officials will brief the committee on the devolved provisions of the bill providing members with an opportunity to explore fully the details of the legislation. The committee may then carry out any other examination of the devolved provisions it wishes and, where it decides to do so, it may make a formal response to the Minister.

16. After consideration of the committee’s response, where appropriate, the department then asks Assembly Section, OFMDFM, to secure Assembly debating time and the Minister will table the motion in the Assembly’s Business Office.

Agreement in the Assembly

17. The Minister will move the motion in plenary, normally in a short speech which provides the background to the devolved provisions and the case for them to be taken forward in the Westminster bill. The chairperson of the relevant committee will present the views of the committee before all Assembly members are given the opportunity to contribute to the debate. The Minister will wind the debate, responding to any points made by members.

18. Following agreement in the Assembly, the Clerk/Director General to the Assembly writes to the Clerks of the House of Commons and House of Lords to notify them of the terms of the legislative consent motion that the Assembly has agreed. The NI Minister will confirm the Assembly’s decision to the respective Whitehall Minister.

19. Where the Assembly has agreed to the continued inclusion of devolved provisions, the Whitehall Minister should consult with the NI Minister on any proposed substantive amendments involving devolved provisions during the Westminster bill’s passage.

20. The NI Minister is required to inform the Assembly committee and Ministerial colleagues of any substantive changes to the devolved provisions in the Westminster bill from those in the version to which consent was obtained. The Minister must decide if the provision has been amended to such a degree that the matter needs to be referred back to the Assembly for consideration of a second legislative consent motion.

Potential for Problems

21. While it would be unusual for the legislative consent motion not to be agreed, it is possible for problems to arise. For example, the Assembly committee may consider that the relevant provisions within the bill as introduced do not accurately reflect the policy as previously presented to the committee. In these circumstances it would be expected that the committee would make its views known to the Minister and to the Assembly during the debate on the motion.

22. If it transpires that the Assembly is not content with the motion and makes amendments to the motion then it is for the relavant UK Minister in conjunction with the NI Minister to decide if the proposed changes can be accepted. If not, Government amendments to remove the Northern Ireland provisions may be tabled at Westminster.

23. If the Assembly were to reject the motion it would be for the relevant UK Minster to table amendments to the bill to remove those provisions which had not obtained the Assembly’s consent.

Findings

24. As part of its inquiry, the Committee on Procedures sought the views of departments, Assembly committees and other interested parties. While a majority largely expressed satisfaction with the current processes, some issues have been identified. These are laid out in the following paragraphs along with recommendations from the Committee on the way forward.

Lack of Standing Orders

25. During its visit to Scotland the Committee was briefed on the background to the introduction of the relevant Standing Orders to Scotland. Although there are some differences in the processes, both the Scottish Parliament and National Assembly for Wales have introduced Standing Orders to address legislative consent motions. Some of the reasons identified for introducing them were that Standing Orders clarify the process, ensure transparency and accountability and impose specific responsibilities.

26. At present in Northern Ireland, the procedures around legislative consent motions are Executive driven and while most of those consulted were reasonably content with the current procedures it was considered that the provision of Standing Orders would go some way to giving a degree of ownership to the Assembly.

The Committee recommends the introduction of Standing Orders to provide clarity and transparency on the procedures for legislative consent motions.

LCM Debates

27. The Committee’s research has shown that very few members, other than those from the relevant committee, contribute to the debate on the legislative consent motion.

Table 1 Speakers to LCMs

Bill	No. of Speakers*	No. who were members of the relevant Committee
Forced Marriage (Civil Protection)	9	7
Child Maintenance and other Payments	4	3
Dormant Bank and Building Society Accounts	8	7
Criminal Justice and Immigration	5	3
Climate Change	10	5
Health and Social Care	8	7
Education and Skills	3	3
Energy	6	4
Pensions (1)	3	2
Pensions (2)	3	2
Total	59	43

* Excludes Minister

Lack of Information

28. While there may be several factors contributing to the low level of input from members who are not on the relevant committee, clearly one is the lack of information available to those MLAs not on the committee. It was noted that there are currently no procedures in place to inform other MLAs of the issues giving rise to a legislative consent motion until the debate on the motion is scheduled.

29. The Committee learnt of the arrangements that the Scottish Parliament has in place for early notification of potential legislative consent motions from the Scottish Government. After the UK Government’s proposed legislative programme is announced, the Scottish Government assesses which bills may require a legislative consent motion and informs the Parliament as soon as possible. While this may be quite early in the process, as some of the proposed bills may never be formally introduced, it does serve the purpose of providing advance notice to all relevant parties. It also informs the committee secretariat of potential work which can be factored into a committee’s forward work programme.

30. This issue of timeliness was highlighted during the inquiry by some of the Assembly committees emphasising the need for committees to be alerted to a proposal at an early stage to allow sufficient time for proper consideration of the issues.

‘A key element of the process is timeliness. The Committee was made aware of the Bill and the LCM with sufficient time for members to properly examine the issues and be thoroughly briefed by the department.’

(Committee for Employment and Learning)

31. The Committee wrote to OFMDFM on 5 June 2009 to seek the Executive’s views on introducing a similar ‘early warning’ system for NI. On 31 July 2009 OFMDFM replied to the Committee regarding this proposal:-

‘The Executive also agrees that on publication of proposals for the UK Legislative Programme, the First Minister and deputy First Minister should bring these to the attention of the Assembly, identifying, where possible, any potential requirements for Legislative Consent Motions...’

32. The Committee also sought the views of the Assembly’s Chairpersons’ Liaison Group on this issue. In its response of 29 June 2009, the Group stated:-

‘This early notification will enable committees to better plan their work and assist them in scrutinising legislative consent motions.’

The Committee recommends that as soon as the proposed legislative programme at Westminster is known, the Executive should identify those bills which may require legislative consent motions to be agreed by the Assembly and inform the relevant parties as early as possible.

33. In both Scotland and Wales, within two weeks of a relevant bill being introduced in Westminster, the Executive Minister is required to lay a copy of the proposed bill’s explanatory memorandum along with a draft legislative consent motion. The explanatory memorandum and motion are then made available to all members of the legislature. By this means, all parties are informed at an early stage of the issues under consideration, why it is appropriate for Westminster to deal with the issues and how they are to be addressed.

34. The Executive has been asked about introducing a similar process for NI and on 31 July 2009 OFMDFM wrote to the Committee:-

‘The Executive welcomes the Committee’s proposals for Standing Orders to formalise the procedures for seeking Assembly agreement to a Legislative Consent Motion, including the requirements to laying a memorandum before the Assembly, with a draft of the proposed motion if appropriate, after the introduction of a relevant Bill in Westminster:’

The Committee recommends that an explanatory memorandum and draft legislative consent motion should be provided to all members within two weeks of a relevant bill being introduced at Westminster.

Role of the Committee

35. Ideally, an Assembly committee is consulted twice – pre and post-introduction of the legislation in Westminster. Consequently, this process should result in the relevant committee members being well informed of the key policy issues. While provision of the explanatory memorandum and draft legislative consent motion will go some way to informing all other members of the Assembly, it is reasonable to assume that committee members would still be better informed due to the direct contact with, and questioning of, departmental officials.

36. While this is the expected position, the Committee on Procedures is aware that, on occasions, bills which would later require legislative consent motions have been introduced in Westminster without the proper degree of prior consultation with the relevant Assembly Committee. Although this is the exception, it does give rise to concerns as to how this was able to occur.

37. In considering the responses from those Assembly committees with experience of legislative consent motions, the Committee has no doubt that the role and input of committees are vital to the process. The need for timely consultation and proper examination of the issues was consistently stated by the committees in their submissions to the inquiry:-

‘As long as the department provides sufficient time for the Committee’s consideration of the Bill, gives all necessary information…..then the process should work well.’

(Committee for Employment and Learning)

‘The Committee agreed that it would support an amendment to Standing Orders which would require the following…

• A briefing from the Minister or departmental officials…
• A summary report on the relevant GB consultation
• A research report
• A bill report summarising the Committee’s view.’

(Committee for Social Development)

38. The Standing Orders in the Scottish Parliament require the relevant committee to consider and report on the legislative consent motion. The legislative consent motion is normally laid only after the committee has reported and not before five sitting days after the day on which the report has been published.

Committee Reports

39. The Committee considered the advantages and disadvantages of an Assembly committee providing a report on its findings on the issues within the explanatory memoranda and the legislative consent motions.

40. Such a report is likely to include its consultations and deliberations along with the explanatory memorandum, the draft legislation and the committee’s views on how well the provisions of the bill reflects the agreed policy. It is envisaged that, apart from inclusion of the evidence, the committee report would be relatively ‘short and sharp’ in delivering the committee’s agreement, or otherwise, to the proposed legislative consent motion.

41. Although expected to be relatively short, it is envisaged that a report would provide all members of the Assembly with key information which, in turn, will inform debate when the motion comes before the Assembly.

42. The views of the Assembly’s Chairpersons’ Liaison Group were sought on this proposal and in their response of 29 June 2009, the Group stated:-

‘Noting the form that the report would take, that allowance will be made for exceptional circumstances and that the report would be a very useful method of providing information to those MLAs not on the relevant committee, the Liaison Group agrees that such a provision should be made.’

The Committee recommends that Standing Orders should provide for the relevant committee(s) to consider and report on the legislative consent motion.

Tabling the Motion

43. The Committee on Procedures recognises the benefits of providing all Assembly members with as much relevant information as possible so that they can properly prepare for the subsequent debate. However, in order to achieve this outcome, it is also recognised that members must be given sufficient time to read and consider the report. To allow for this, it is important that there is a minimum and sufficient time gap between publication of the report and the debate.

The Committee recommends that the legislative consent motion should not be tabled until after the committee report has been laid in the Business Office.

Post Debate Action

44. During its inquiry, the Committee learnt that after a legislative consent motion has been agreed, the Clerk/Director General to the NI Assembly writes to the Clerks of the House of Commons and the House of Lords with details of the motion passed. In his submission to the Committee, David Beamish, Clerk Assistant, House of Lords, wrote:-

‘There is a system in place for recording the legislative consent motions passed by the Scottish Parliament by means of an annotation next to the relevant bill where bills in progress are listed in the House of Lords Business document. This has not been extended to legislative consent motions passed by the Northern Ireland Assembly as there has been no request for such annotations to be published. But it would not be difficult to do.’

45. The Committee on Procedures considers this relatively minor procedure could be a valuable asset in ‘flagging up’ potential problems and has confirmed with Westminster that this can be arranged with their clerks.

46. The views of the Clerk/Director General to the Assembly were sought on this matter and on 4 August 2009, the Clerk/Director General wrote that he was content with implementing the proposal, if agreed.

The Committee recommends that arrangements be made for details of the legislative consent motions agreed in the Assembly to be annotated next to the relevant bills’ documentation in Westminster.

Second LCM

47. It is not unusual, indeed in many cases it is expected, that a bill will be amended as it progresses through its stages in Westminster and there is no legal requirement to bind Westminster to what was agreed within the devolved administration’s legislative consent motion. Continued monitoring of the bill and effective liaison between the department and Westminster should identify potential issues. Having safeguards in place will contribute to identification as early as possible of any potential problem.

‘Whitehall Minister consults Minister on any proposed Government, or Government-supported, substantive amendments involving devolved provisions and keeps Minster informed of any other developments on devolved provisions during the Westminster Bill’s passage.’

(OFMDFM Guidance)

48. When agreeing a legislative consent motion, usually the endorsement of the principle of the extension of certain provisions to Northern Ireland the Assembly will normally do so on the basis of the specific provisions within the Westminster bill at introduction. Consequently, a further decision may be required if a bill is subsequently amended in Westminster to such a degree that it no longer represents the terms of the agreed legislative consent motion.

‘Where there are significant amendments to the devolved provisions in a Bill, the NI Department will bring these to the attention of the Assembly Committee, and where the scope of the original LCM does not cover these amendments, a further motion will be brought to the Assembly for agreement.’

(LPS, OFMDFM inquiry submission)

49. Urgent decisions may be required on whether the section relating to NI should remain or, in extreme circumstances, whether it is necessary to introduce a second legislative consent motion. For example, this was required with the Pensions Bill in 2008. The Assembly agreed a legislative consent motion on 26 February 2008 but the NI Minister considered it necessary to come back to the Assembly on 1 July 2008 with a second motion as the original bill had been amended in a key area within the House of Lords.

50. In these circumstances, time pressures are likely to prevent any significant time for consultation with committees prior to debating the second legislative consent motion. It is expected that the Minister will inform the committee of how he/she intends to proceed (and the reasons for this) before coming back to the Assembly with a second legislative consent motion.

The Committee recommends that the proposed Standing Orders address the curtailed process when a Minister considers that a second legislative consent motion is required.

LCM from a Member

51. Because of the liaison arrangements already in place between Westminster and NI, and subject to acceptance of the recommendations within this report, the Committee on Procedures is confident that the NI Minister will be in a position to take the lead in consulting with the relevant Assembly committee, in providing the appropriate documentation timeously and in obtaining the Assembly’s agreement to any subsequent legislative consent motion.

52. However, any Member may table a motion, including a legislative consent motion, for the consideration of the Assembly, subject to the agreement of the Business Committee. It is envisaged that this will be a very rare occurrence but it does need to be addressed.

53. At paragraph 3 of this section, reference was made to the MoU agreed between Westminster and the devolved NI administration in July 2000. As a result of the MoU, responsibility for seeking the devolved administration’s agreement to Westminster legislating on devolved matters lies solely with the NI Minister responsible for the matter concerned. Consequently, even if a Member were to table a legislative consent motion it is the view of this Committee that it should not be considered unless the Member also provides confirmation from the relevant Minister on whether he/she intends to submit a legislative consent motion.

54. Where a Member wishes to table a legislative consent motion, the rules relating to the process must be followed, that is, the Member must provide all other members with explanatory documentation consisting of a copy of the proposed bill’s explanatory memorandum, a draft motion and also an explanation of why the member considers it appropriate that the relevant provision within the Westminster bill should be agreed.

55. Where a NI Minister has already referred an explanatory memorandum and draft motion to a committee, it is expected that a Member’s legislative consent motion will not be tabled until the relevant committee has considered and reported on the matter.

56. However, in the case where a legislative consent motion from a Member receives the agreement of the Assembly, the UK Government may still table amendments withdrawing the relevant Northern Ireland provisions if their retention is not supported by the NI Minister and the NI Executive.

The Committee recommends that the proposed Standing Orders should contain provisions for a Member to table a legislative consent motion.

Private Member’s Bill

57. A Private Member’s Bill (PMB) can be introduced into either House at Westminster but it is exceptional for one to progress to any degree without government support. As a PMB will not be shown on the Government’s legislative programme, it is only through pro-active liaison arrangements that these will be flagged up after their introduction.

58. The Committee considered whether a legislative consent motion was required for a PMB and, if so, at what stage.

59. In discussions with the Committee, LPS expressed concerns that a legislative consent motion may be begun prematurely as a PMB progresses through the House of Lords and the work of the Executive may prove nugatory. LPS pointed out that the majority of PMBs do not progress beyond the first amending stage in the House of Commons, even if they were introduced and had passed through all of the stages in the House of Lords. Consequently, LPS saw little value in investing significant resources too early in the process when there was little chance that a PMB would progress to legislation.

60. While OFMDFM’s view seeks to minimise the preparatory work on consultation etc which would be wasted if a PMB falls, this needs to be weighed against the potential problems if there is insufficient time available to a committee to consider properly the need for, and issues requiring, a legislative consent motion. Many of the submissions to the Committee highlight the need to maximise the time to identify, consult and report on legislative consent motions and while there may well be occasional instances of wasted effort, these are unlikely to be significant if the process and liaison is timely, relevant and managed.

In respect of a Private Member’s Bill which contains provisions relevant to Northern Ireland, the Committee recommends that the procedure in the proposed Standing Orders should begin within two weeks of the completion of the first amending stage in the House in which the Bill was introduced.

Summary

61. Having considered all of the issues, the Committee on Procedures has agreed that in relation to legislative consent motions, the NI Assembly should introduce Standing Orders to provide for the following:-

• Timely and full consultation with the relevant committee(s)
• Provision by the NI Minister of a range of information for all Assembly members
• A committee(s) to report its findings to the Assembly
• Relevant Private Member’s Bills to be notified to the committee(s) soon after passing the first amending stage in the House in which they were introduced.

62. Legislative consent motions are not everyday occurrences for the Assembly to deal with but they do occur and on a more regular basis. The Committee considers that the proposals within this report will not only give the Assembly much more control and ownership of the process but will go some way to better informed debates.

Appendix 1

Minutes of Proceedings

Tuesday, 3 February 2009
Room 144, Parliament Buildings

Present: Lord Morrow (Chairperson)
Mr Mervyn Storey (Deputy Chairperson)
Mr Mickey Brady
Mr Francie Brolly
Lord Wallace Browne
Mr Raymond McCartney
Mr David McClarty
Mr Adrian McQuillan
Mr Sean Neeson
Mr Declan O’Loan
Mr Ken Robinson

In Attendance: Ms Stella McArdle (Assembly Clerk)
Mr Jim Beatty (Assistant Assembly Clerk)
Ms Noelle Bourke (Clerical Supervisor)
Mr Diarmaid Elder (Clerical Officer)

Apologies: None

10. Inquiry on Legislative Consent

The Committee considered draft Terms of Reference and workplan for this inquiry.

Agreed: The Terms of Reference and workplan were agreed.

Lord Morrow
Chairperson
Committee on Procedures

Tuesday, 3 March 2009
Room 144, Parliament Buildings

Present: Lord Morrow (Chairperson)
Mr Mervyn Storey (Deputy Chairperson)
Mr Mickey Brady
Mr Francie Brolly
Lord Wallace Browne
Mr David McClarty
Mr Adrian McQuillan
Mr Sean Neeson
Mr Ken Robinson

In Attendance: Ms Stella McArdle (Assembly Clerk)
Mr Jim Beatty (Assistant Assembly Clerk)
Ms Linda Hare (Clerical Supervisor)
Mr Diarmaid Elder (Clerical Officer)

Apologies: None

6. Legislative Consent Inquiry

The Committee was briefed by Assembly Research on a paper which covered the current procedures on dealing with legislative consent motions in the NI Assembly and other legislatures.

The Committee considered the responses from some committees which had previously dealt with legislative consent motions.

The clerk briefed the Committee on some more background to the issues and outlined key areas which members may wish to explore further with the witnesses from OFMDFM.

Mr Neeson left the meeting at 2.47pm.

Mr Jim Hamilton and Ms Julie Gillespie, officials from OFMDFM, joined the meeting at 2.48pm and made a short presentation on legislative consent. The officials then answered questions from members.

Mr Brolly left the meeting at 2.56pm.

The officials left the meeting at 3.15pm.

Agreed: The Committee agreed to forward additional questions to OFMDFM.

Agreed: The clerk will bring forward proposals for a short visit to the Scottish Parliament to discuss issues relevant to legislative consent.

Lord Morrow
Chairperson
Committee on Procedures

Tuesday, 31 March 2009
Room 144, Parliament Buildings

Present: Lord Morrow (Chairperson)
Mr Mervyn Storey (Deputy Chairperson)
Mr Mickey Brady
Mr David McClarty
Mr Adrian McQuillan
Mr Declan O’Loan

In Attendance: Ms Stella McArdle (Assembly Clerk)
Mr Jim Beatty (Assistant Assembly Clerk)
Ms Linda Hare (Clerical Supervisor)
Mr Diarmaid Elder (Clerical Officer)

Apologies: Mr Francie Brolly
Lord Browne
Mr Raymond McCartney
Mr Sean Neeson
Mr Ken Robinson

6. Legislative Consent Inquiry

The Committee considered submissions regarding Legislative Consent Motions from a number of departments and a response from OFMDFM to questions outstanding after the presentation from OFMDFM officials at the meeting of 3 March 2009.

Agreed: The Committee agreed to undertake a visit to the Scottish Parliament on Wednesday 29 April 2009 to further its inquiry into Legislative Consent Motions. The Chairperson will attend along with one member from each party represented on the Committee.

Lord Morrow, Chairperson

Committee on Procedures

Tuesday, 5 May 2009
Room 135, Parliament Buildings

Present: Lord Morrow (Chairperson)
Mr Mickey Brady
Mr Francie Brolly
Lord Browne
Mr David McClarty
Mr Adrian McQuillan
Mr Sean Neeson
Mr Ken Robinson

In Attendance: Ms Stella McArdle (Assembly Clerk)
Mr Jim Beatty (Assistant Assembly Clerk)
Ms Linda Hare (Clerical Supervisor)
Mr Diarmaid Elder (Clerical Officer)

Apologies: Mr Declan O’Loan
Mr Mervyn Storey (Deputy Chairperson)

5. Legislative Consent Inquiry

The Committee noted submissions regarding Legislative Consent Motions from the Department for Social Development and the House of Commons.

The Committee received feedback from those members who visited Scotland on 29 April 2009 and noted a written report on the visit.

Agreed: It was agreed that the clerk would prepare a paper on the key issues around legislative consent for the meeting on 2 June 2009.

Lord Morrow
Chairperson
Committee on Procedures

Tuesday, 2 June 2009
Room 144, Parliament Buildings

Present: Lord Morrow (Chairperson)
Mr Mervyn Storey (Deputy Chairperson)
Mr Mickey Brady
Mr Raymond McCartney
Mr David McClarty
Mr Declan O’Loan
Mr Ken Robinson

In Attendance: Ms Stella McArdle (Assembly Clerk)
Mr Jim Beatty (Assistant Assembly Clerk)
Ms Linda Hare (Clerical Supervisor)
Ms Dagmar Walgraeve (Clerical Officer)

Apologies: Mr Francie Brolly
Lord Browne
Mr Adrian McQuillan
Mr Sean Neeson

6. Inquiry on Legislative Consent Motions

The Committee considered a paper on the issues arising from its inquiry.

Agreed: It was agreed that Private Members’ Bills would be addressed within the new Standing Orders in line with the approach taken in Scotland.

Agreed: It was agreed that the views of the Chairpersons’ Liaison Group and OFMDFM should be sought on relevant issues arising from the Committee’s inquiry.

Agreed: It was agreed that the clerk should prepare a draft report for the Committee’s consideration in September 2009.

Lord Morrow, Chairperson

Committee on Procedures

Tuesday, 15 September 2009
Room 144, Parliament Buildings

Present: Lord Morrow (Chairperson)
Mr Mervyn Storey (Deputy Chairperson)
Mr Mickey Brady
Mr Francie Brolly
Lord Browne
Mr Raymond McCartney
Mr David McClarty
Mr Adrian McQuillan
Mr Sean Neeson
Mr Declan O’Loan
Mr Ken Robinson

In Attendance: Mrs Mairead Mageean (Assembly Clerk)
Mr Jim Beatty (Assistant Assembly Clerk)
Ms Sharon Greene (Clerical Supervisor)
Ms Dagmar Walgraeve (Clerical Officer)

8. Inquiry on Legislative Consent Motions

The Committee was updated on responses to its proposals from the Chairpersons’ Liaison Group and the Executive and considered a draft report on the issues arising from its inquiry.

Mr Brolly joined the meeting at 2.23pm.

Agreed: Front Cover

Membership and Powers

Table of Contents

Executive Summary

Summary of Recommendations

Introduction

Consideration of Key Issues

Minutes of Proceedings
Subject to correction of the entry for 31 March 2009.

Minutes of Evidence

Written Submissions

Research Papers

Other Papers

Agreed: The Committee ordered the report to be printed today and agreed for two copies to be lodged with the Business Office.

Agreed: Committee members will receive a copy of the report when it is printed.

Agreed: The report will be embargoed until commencement of the debate on the report in Plenary.

Agreed: MLAs will receive a copy of the report the week before the report is due to be debated.

Agreed: A copy will be sent to Legislation Progress Unit, OFMDFM, after MLAs have received their copies.

Agreed: It was agreed that the chairperson should sign the relevant motion for tabling in the Business Office.

Lord Morrow, Chairperson
Committee on Procedures

Appendix 2

Minutes of Evidence

3 March 2009

Members present for all or part of the proceedings:
Lord Morrow (Chairperson)
Mr Mervyn Storey (Deputy Chairperson)
Mr Mickey Brady
Mr Francie Brolly
Lord Browne
Mr David McClarty
Mr Adrian McQuillan
Mr Ken Robinson

Witnesses:

Ms Julie Gillespie Mr Jim Hamilton

Office of the First Minister and deputy First Minister

1. The Chairperson (Lord Morrow): I invite Jim Hamilton and Julie Gillespie to come forward. Julie and Jim will be able to answer all of the questions that members might have on these issues. I welcome you to the Committee, and thank you for coming.

2. Mr Jim Hamilton (Office of the First Minister and deputy First Minister): Thank you for the opportunity to make a short presentation to the Committee. As members are aware, the Assembly has full legislative authority to make laws for Northern Ireland on devolved matters by Act of the Assembly. Westminster can also do so, by Act of Parliament, but the expectation is that legislating on devolved matters would normally be for the Assembly to do.

3. However, there are times when legislating on devolved matters at Westminster may be appropriate: for example, to introduce or retain a single, UK-wide regulatory regime — as is the case with a majority of the health professions or the regulation of personal pensions. Reference was made to that option in the Belfast Agreement.

4. Inevitably, there has to be a protocol to govern this. The bulk of legislation is promoted at Westminster by the UK Government and in the Assembly by Executive Ministers. There is an agreement that the Government will proceed in accordance with the convention that Parliament does not normally legislate on devolved matters, except with the agreement of the Assembly. The agreement further stipulates that the relevant Northern Ireland Minister will be responsible for seeking that agreement from the Assembly on an approach from the relevant UK Minister.

5. One of the functions of my branch — the legislative programme secretariat — is to provide procedural guidance to Departments on this convention and to monitor implementation. Our advice, which has the broad endorsement of the Executive, highlights the need for Departments, when approached by their Whitehall colleagues about the potential inclusion of devolved provisions in a Westminster Bill, to consider not just the appropriateness of the underlying policy for Northern Ireland but whether it would be more appropriate to legislate by means of an Assembly Bill instead.

6. Where the Westminster route is to be explored further, we envisage, ideally, having a two-stage approach. The first stage, in consultation with the relevant Assembly Committee, is agreement by the Minister — endorsed by the Executive — that Northern Ireland provisions should be included in the Bill before its introduction at Westminster.

7. The second stage is a more formal Assembly stage whereby, following the Bill’s introduction and further Committee scrutiny, the Assembly is asked to decide whether the devolved provisions should remain in the Bill. The UK Government normally require confirmation of the Assembly’s agreement before the final amending stage in the House in which the Bill is introduced; otherwise, the Northern Ireland provisions are removed at that stage.

8. It may not always be possible to consult the Assembly Committee prior to the introduction of the Bill. The second stage of the process, leading up to the passing or otherwise of what is termed a “legislative consent motion", should always be carried out. Those procedures are also used to obtain the Assembly’s agreement to provisions which alter the legislative competence of the Assembly or the executive functions of Northern Ireland Departments or Ministers. Under those procedures, the Assembly’s consent to devolved provisions which are only consequential or incidental to provisions made for reserved or excepted matters is not required.

9. Between restoration in May 2007 and the end of the 2007-08 Westminster session, the Assembly dealt with 10 legislative consent motions. We expect that up to five more may need to be considered in relation to Bills introduced in the 2008-09 session so far. Of those, the Marine and Coastal Access Bill [HL] was considered by the Assembly yesterday, and the Health Bill [HL] is being considered today.

10. Apart from one glitch in relation to minor amendments to the Counter-Terrorism Bill, the procedures have worked reasonably well — from the Executive’s perspective at least. However, we are aware of the continuing need for Departments and their Whitehall colleagues to identify as early as possible potential provisions which would trigger a legislative consent motion, and, once confirmed, for this to be followed by prompt engagement with the relevant Assembly Committee. For our part, in the Office of the First Minister and deputy First Minister (OFMDFM), we intend to continue to assist and advise Departments in carrying out their obligations to all parties involved in the process.

11. Mr McQuillan: You said that, if the Northern Ireland Assembly did not agree with part of a Bill, it would be withdrawn at the final stage at Westminster. What would then happen to the Northern Ireland provisions of that Bill?

12. Mr J Hamilton: Usually, legislative consent motions that the Assembly is asked to consider are quite specific in identifying those parts of the Bill containing Northern Ireland provisions. If the Assembly did not agree to a legislative consent motion, then, because that decision should ideally be taken before the final amending stage in the first House, without that consent the relevant Minister at Westminster would then table amendments to the Bill to remove the provisions that the Assembly had not agreed to.

13. Mr McClarty: What sort of time should be set aside for full consideration by the relevant Committee?

14. Mr J Hamilton: It would depend on the nature of the Bill and the amount of consultation that there had been on the underlying policy prior to the Bill’s introduction. In the case of the Climate Change Bill, a draft Bill was produced at Westminster and was consulted on across the UK. The Committee here was aware of that well before the Bill was introduced.

15. Normally, unless the Bill was going through Westminster by an expedited process, there should be two to three months available for the Assembly to reach a conclusion on whether the Northern Ireland provisions should remain in the Bill. The actual wording of the Bill will be known at its introduction. The Department should come to the Committee as soon as possible after that to make the Committee aware of the Bill, and of what its proposal is for dealing with the Bill.

16. In the meantime, the Bill will have its Second Reading at Westminster and will then go through Committee Stage. Report Stage is the final Stage at which a Bill can be amended in the Commons. Therefore, a decision needs to be taken by the Assembly before that. If no decision is taken or if the decision goes against the Northern Ireland provisions, they will be removed. However, everything depends on how quickly the Bill progresses through Westminster, once it is introduced.

17. The Chairperson: I think you indicated that it would be preferable, or that it must be the case, that the issue be raised with the Assembly before the Bill goes to Westminster — did you say that, or did I pick you up wrong?

18. Mr J Hamilton: Although it cannot always happen, we advise Departments to come to the Committee with the proposed policy content of a Bill, not the Bill itself, because Bills are usually being drafted at Westminster right up to the last minute before introduction. That is the ideal process that we envisage. In any event, there would be difficulties in letting Members of the Assembly see a Bill before MPs at Westminster have seen it.

19. Therefore, it is the policy behind the Northern Ireland provisions and the principle of including them in a Bill that, ideally, Committees should be consulted on before a decision is taken to include those provisions. In our view, no formal decision can be taken by the Assembly until the Bill has been introduced because, until that has happened, no one will know exactly what is going to be in it or how it relates to Northern Ireland. In our view, it is only when that is known that the Assembly can decide whether it wants Westminster to go ahead and legislate in a particular area.

20. The Chairperson: If legislation comes from Westminster that impacts on the Assembly and its work, is it a case of imposition from there on in, and we should just live with that? In a way, that is a form of direct rule.

21. Mr J Hamilton: The Assembly agreeing a legislative consent motion is almost like the Second Stage of an Assembly Bill; it is about agreeing to the principles contained in a Bill, as far as Northern Ireland is concerned. However, in the case of a legislative consent motion, the Assembly is agreeing that it will leave the Committee Stage and the detailed scrutiny of the Bill before it is passed to Westminster.

22. Therefore, the Assembly is giving up the normal role that it has with an Executive or private Member’s Bill — for example, to do detailed amending at Consideration Stage. Therefore, in that sense, the passing of a legislative consent motion is a way for the Assembly to say that it is happy with the principle of the Bill and the area that Westminster is legislating on, but it is handing over responsibility to the UK Parliament.

23. The Chairperson: Can a Bill then be, for want of a better word, tweaked to deal with peculiarities relating to Northern Ireland?

24. Mr J Hamilton: It can, but normally that tweaking should have taken place prior to the introduction of the Bill. However, that does not mean that it cannot be tweaked further — for example, during the Committee Stage or at Report Stage in the Commons. However, the amount of influence that the Assembly or a Committee has over that process is very limited, given that responsibility has been passed over to the Westminster Parliament.

25. The Chairperson: If it were agreed that some changes were going to be made, would that be done in consultation with the drafters in Westminster and here? Would there be liaison between those two groups?

26. Mr J Hamilton: Do you mean before the Bill is introduced?

27. The Chairperson: Yes.

28. Mr J Hamilton: Yes. In practice, once an agreement in principle is reached that a particular provision of a Bill will extend to Northern Ireland, there tends to be further consultation between the Whitehall Department, its legal advisers and the parliamentary counsel that drafted the Bill on one hand; and the relevant Northern Ireland Department, its legal advisers, and the Office of the Legislative Counsel on the other. The consultation will be about the detail of the provisions to make sure that they meet what the Department requires in relation to the policy content of the Bill and also that the provisions reflect the Northern Ireland situation and the Northern Ireland statute book. Normally, there is a great of deal of work that goes on prior to the Bill’s introduction.

29. Mr Storey: There has recently been a lot of concern about the Sewel Convention and the guidance and the legal authority in relation to that. It seems that the memorandum of understanding between the UK Government and any of the devolved Administrations is only guidance. There could be a situation in which the Government could make decisions without notifying the devolved Administration. When issues go through the Commons, who is responsible for notifying the devolved Administration?

30. Mr J Hamilton: That clearly lies with the relevant Whitehall Department. The Ministry of Justice gave all of the Whitehall Departments very clear guidance about their responsibilities to identify any provisions in Bills that would trigger a legislative consent motion. Prior to a Bill being brought to the Cabinet’s legislation committee, which approves its introduction, the relevant Whitehall Minister is required to assure that committee that any devolved issues have been dealt with and resolved. If a consent motion is required, the Minister must get an undertaking from the Northern Ireland Minister that he or she will bring that motion to the Assembly after the Bill has been introduced.

31. You are quite right; it is a convention. It is not legally enforceable. However, I imagine that there would be quite severe political implications if the UK Government did not keep their side of the bargain in that respect.

32. The Chairperson: Is there a statutory obligation for the Assembly to be contacted in those instances, or is that just a courtesy?

33. Mr J Hamilton: It is a convention.

34. The Chairperson: So that must happen?

35. Mr J Hamilton: Our experience is that, when provisions have been identified, that approach will be used. As far as we are aware, no provisions have been missed. The UK Government and the devolved Administrations have agreed that that is how that will operate.

36. The Chairperson: What you are saying is that that convention has been foolproof to date; there has been no —

37. Mr J Hamilton: Yes. I do not think that we can complain on that front.

38. Mr Storey: It is a political convention, rather than a legal one. There is no legal framework for it.

39. Mr J Hamilton: I accept that. However, as I said, given that the Assembly and the UK Parliament both have legislative authority in the same area, the absence of a protocol would lead to confusion, to say the least. There needs to be a protocol, and the one that we have reflects the devolution settlement.

40. To say the least, it would be odd for the UK Government to have brought about a devolution settlement giving powers to Northern Ireland Departments and legislative powers to the Assembly, and then to decide that they would exercise those functions themselves. Obviously, that is not consistent.

41. The Chairperson: Perhaps we are suspicious about the way it works.

42. Mr Storey: If, for whatever reason, after a piece of legislation was introduced — and assuming that nothing sinister is going on — the Assembly discovered that it had an adverse impact on Northern Ireland, what is our fallback position? What redress would we have? Given that the onus to initiate the original legislation seems to be on the UK Parliament, has the Assembly any recourse to raise an issue of concern after a Bill has gone through the House of Commons?

43. Mr J Hamilton: As you will appreciate, there comes a stage by which there is no longer any opportunity to amend the Bill. It could happen that, after a Bill has gone through the House of Commons, the Assembly, OFMDFM, or a particular Department suddenly realises that a legislative consent motion should have been passed. Even if it is late in the day, we should try to deal with that situation by having the Assembly agree to a legislative consent motion. If the Whitehall Department has not already picked that up and alerted people, the only way that the provisions can remain in the Bill is through a legislative consent motion being passed by the Assembly.

44. The question is whether the legislation is past the post by that stage, or there is still a chance to amend it. The UK Government are focusing so much on the final amending stage in the first House because they want any amendments to remove the provisions for Northern Ireland to be dealt with before the Bill goes to the second House. Any amendments made in the second House must come back to the first House for endorsement, which has consequences for the management and timetable of the Bill. However, legislative consent motions have, in some cases, been passed at a very late stage in the second House, so it can happen.

45. However, by waiting until that stage, the Assembly would be taking a risk. The UK Department may say that it cannot risk the disruption to the Bill’s programme and insist that unless the Assembly makes up it mind by the final amending stage in the first House, it is out of the process.

46. Mr Storey: I am still not clear. If we have gone through that process and discovered that, in law, something is wrong, do we not have a fallback position?

47. Mr J Hamilton: That is not strictly true. If the provisions are devolved, that is, relate to a transferred matter, the Assembly retains its legislative authority. Therefore, if the Assembly was unhappy with what had been done, it could introduce a Bill to undo it.

48. Mr Storey: Yes, but in relation to the Pensions Act 2008, we cannot. If, through some set of circumstances that the Assembly could not have foreseen when it approved the legislative consent, something that is peculiar to Northern Ireland is discovered, what recourse does it have?

49. The Chairperson: Is the Assembly ever in the position that, somewhere down the road, it can rethink and undo legislative consent? Is there no way back after the legislative consent motion has been passed? Is it a case of the Assembly having to live with what it has done for ever and a day, or is there a stage at which a future Assembly could decide to take it back for itself?

50. Mr J Hamilton: It boils down to what the Assembly’s competence is regarding the legislation. If it is a transferred matter and it relates to Northern Ireland, it will remain so, regardless of whether a legislative consent motion has been passed. The current example would be the provisions in the Health Bill [HL], which the Assembly is discussing today, that deal with banning the display of tobacco at the point of sale. Some of that legislation is Northern Ireland legislation. If, having passed the motion — assuming that it does — and the Bill having been enacted, the Assembly decides that it no longer wants to ban the display of tobacco at the point of sale, a private Member, a Committee or a Minister can bring forward a Bill to undo that.

51. Most of the provisions in that Bill would be devolved provisions, and the promoter of the Bill might need Secretary of State consent if it started to interfere with offences and penalties. At the moment, those are reserved matters; however, following the devolution of policing and justice, they will not be. That is the way in which the Assembly could address something which has already been enacted and is law.

52. If, after the Assembly passes the legislative consent motion, something changes in the Bill, or amendments come into it which the Committee or the Assembly was not aware of when the Bill was introduced, those significant changes would be brought to the Committee’s attention. If the original consent motion did not cover those provisions, a revised consent motion would be brought to the Assembly. I have given you examples of where that has been required — the Pensions Bill — and where it was not required — the Climate Change Bill.

53. The Chairperson: Does convention always dictate that there will be consultation on any future amendments to the Bill, or can the Bill be amended, for instance, as and when Westminster feels that it should be?

54. Mr J Hamilton: Convention only requires that a consent motion be passed to cover the area of the Bill concerned. As I said, that means that Westminster is free to legislate, amend and pass those provisions. However, in our guidance to Departments, we have said that if significant policy changes are made to the Bill — rather than the minor amendments, refinements and improvements that you would expect any legislature to make — the Department should come back and alert its Committee to those changes. The issue then arises about whether that triggers a requirement for another consent motion, or whether the original consent motion is sufficient.

55. The Chairperson: I notice that you used the word “should"; you did not say that the Departments “must" come back to the Committee.

56. Mr J Hamilton: No. Guidance is issued to Departments at official level, and we have no reason to suppose that they are not taking cognisance of it. It is good practice, and it is something which, as far as we are aware, Departments do.

57. The Chairperson: Rather than take that further, we might come to you with some questions in writing on the issues that have not come forward today. I am sure that the Committee will agree with that and I hope that you do too. I thank you both for giving up your time to come here today.

Appendix 3

Written Submissions

Committee for Health, Social
Services and Public Safety

Iris Robinson MP MLA,
Chairperson, Committee for Health,
Social Services and Public Safety

Room 412
Parliament Buildings
BELFAST
BT4 3XX
E-mail: committee.hssps@niassembly.gov.uk
Tel: 028 9052 1920
Fax: 028 9052 1667

20 February 2009

Lord Morrow of Clogher Valley
Chairman
Committee on Procedures

Legislative Consent

Your letter of 12 February about the inquiry into Legislative Consent refers.

The Committee for Health, Social Services and Public Safety has dealt with two Westminster Bills which contained provisions relating to Northern Ireland and which required Legislative Consent Motions by the Assembly. Proposed Northern Ireland provisions in a third Bill were dropped before its introduction and a further Bill with Northern Ireland provisions is pending.

The Criminal Justice and Immigration Bill at the end of 2007 contained provisions to deal with people who abuse or threaten staff in hospitals. The Committee was briefed by departmental officials on the proposed provisions in the Bill and members were supportive of the proposal. The Committee subsequently supported the Legislative Consent motion.

The Health and Social Care Bill, debated in early 2008, contained four provisions relating to Northern Ireland. The main issue related to proposed changes to the regulation of health professions. The Committee had concerns about how this provision would impact on the regulation of pharmacists and the overall effect it would have on the Pharmaceutical Society Northern Ireland. Recognising that the Bill would simply give the Minister power to decide on the issue and on the basis that the Minister would return to the Committee before reaching a decision, the Committee supported the motion.

When the Committee was first advised of Human Fertilisation and Embryology Bill last year the Department indicated that it would contain provisions relating to Northern Ireland. However, as the Bill progressed these were dropped and a legislative consent motion was not required.

The current Health Bill 2009 contains provisions relating to the display and sale of tobacco and it is proposed that these should extend to Northern Ireland. Again it would seem that the Bill will give the Minister power to implement these provisions in Northern Ireland if he so decides.

The Committee considers that the current procedures work reasonably well. It is essential that the Committee is alerted to a proposal at an early stage and that the Minister or the departmental officials explain the provisions in detail to the Committee. The Committee can then decide whether or not to support the Legislative Consent motion in the Assembly in due course. There is a concern, however, that specific provisions in a Bill can change significantly as it passes through the various parliamentary stages. The Committee, therefore, believes that the timing of a Legislative Consent Motion is crucial to ensure that any significant changes are known about and taken into account during a debate on the motion.

I hope this is helpful.

Iris Robinson MP MLA
Chairperson

Committee for Employment and Learning

Ms Stella McArdle
Committee Clerk
Committee on Procedures
Room 430
Parliament Buildings
Stormont, BT4 3XX 20th February 2009

Dear Stella

RE: Legislative Consent

The Chairperson of the Committee for Employment and Learning acknowledges receipt of your letter of 12th February with regard to Legislative Consent and she has asked to reply on her behalf.

As you indicated in your letter, the Employment and Learning Committee dealt with a Bill requiring a Legislative Consent Motion (LCM) in the latter part of 2007. The issue was the amendment of the Education Act 1997 using the Education and Skills Bill, which was introduced to the House of Commons in November 2007. I won’t go into the detail about the basis for the LCM. I will instead deal with the arrangements that were followed with regard to consulting the Committee and the Committee’s consideration and reporting of the proposed legislation.

A key element of the process is timeliness. The Committee was made aware of the Bill and the LCM with sufficient time for members to properly examine the issues and be thoroughly briefed by the department. The Committee also

received considerable information and briefing on the basis for the LCM its and its outworkings from the Legislative Programme Secretariat in OFMdFM. A very complex process was made significantly more accessible to members as a result. The timescale for the process was also made very clear to the Committee from the outset, giving members very specific targets to aim for.

In this case, the Bill was not overly controversial and it passed through Committee consideration with reasonable ease, only being brought back to Committee once after being initially signed off for further clarification. In terms of improvements to the process, it would seem that a significant proportion of the process is dictated by the department and the timescale to which it is working. As long as the department provides sufficient time for the Committee’s consideration of the Bill, gives all necessary information and briefing and the Committee has access to the appropriate sources of information available on the LCM, then the process should work well. Obviously, a contentious issue could derail the process, but if there is Committee consensus then the process itself of considering and reporting on the Bill and the resulting LCM receiving the Assembly’s approval would seem to work well enough.

I would emphasise, as with all Committee business, that co-operation and consideration on the part of the department makes this particular process much easier to manage.

If you require any further information please do not hesitate to contact me.

Yours sincerely,

Peter Hall
Committee Clerk

Committee for Finance and Personnel

Committee for Finance and Personnel
Room 419
Parliament Buildings
Tel: 028 9052 1843

From: Shane McAteer, Clerk to the Committee for Finance and Personnel
Date: 25 February 2009
To: Stella McArdle, Clerk to the Procedures Committee

Legislative Consent

1. Thank you for your letter of 12 February 2009 inviting a submission from the Committee for Finance and Personnel to the inquiry by the Procedures Committee into the Legislative Consent procedure.

2. To date the Committee for Finance and Personnel has considered two proposals for legislation under this procedure, namely the Forced Marriage (Civil Protection) Bill and the Dormant Bank and Building Society Accounts Bill. I have outlined below the process which was followed in respect of both bills and the outcome of the Committee’s deliberations.

Forced Marriage (Civil Protection) Bill

3. The Forced Marriage (Civil Protection) Bill passed through Westminster on 26 July 2007 and legislated for Northern Ireland in addition to other parts of the UK. It was proposed that NI be included on this occasion on the grounds of expediency. However, as family law is a transferred/devolved matter, the consent of the Assembly was sought before proceeding with the measure. The Executive cleared the extension of the Bill to NI on 24 May 2007 and the proposal was subsequently brought to the Committee for Finance and Personnel.

4. The Committee received a written briefing and oral evidence on the Bill from the Principal Legal Officer in DFP’s Departmental Solicitor’s Office on 30 May 2007. The Department also provided Committee members with copies of the Bill.

5. Members queried a number of aspects of the Bill, including:

• how the legislation would act as a proper deterrent to persons being forced into a marriage against their will;
• how juveniles will be adequately protected;
• the application for protection orders by third parties acting on behalf of a person who is being forced into a marriage;
• guidance to fully explain definitions and clauses within the legislation; and
• how the public will be adequately informed of the legislation.

6. The Committee noted that, as part of the consultation on the issue of including NI in the Bill, groups such as the NI Human Rights Commission and the Commissioner for Children and Young People had indicated their support for this approach.

7. The Committee subsequently agreed unanimously on 30 May 2007 to support DFP in seeking the Assembly’s endorsement of the principle of the extension of the provisions of the Forced Marriage (Civil Protection) Bill to NI. The motion was agreed in plenary on 11 June 2007.

Dormant Bank and Building Society Accounts Bill

8. The Dormant Bank and Building Society Accounts Bill passed through Westminster and legislated for the inclusion of NI on 26 November 2008. Whilst the Bill deals with the reserved matter of financial services, in the spirit of devolution, the UK Government decided to make provision in the Bill for the devolved Administrations to set spending priorities and to have some input into the distribution of the monies in their jurisdictions.

9. The Assembly’s consent was sought for the inclusion of NI in so far as the Bill contains provisions conferring new executive functions on DFP. The Department would have the power to make an order identifying the spending areas within which the Big Lottery Fund may distribute the funds from the unclaimed assets of dormant bank and building society accounts, which are apportioned to NI.

10. The Committee held two separate evidence sessions on the Bill with DFP officials, including the Principal Legal Officer in the Departmental Solicitor’s Office. These sessions were recorded by Hansard and the Committee decided to publish the Official Reports on the Assembly website to ensure that the details of its deliberations were available to the wider body of MLAs and to other stakeholders. Copies of the draft Bill were also provided to Committee members by the Department.

11. During the first evidence session on 24 October 2007, members raised a range of issues in respect of the Bill. These included:

• The consequences if Legislative Consent was not given by the Assembly.
• How the alternative scheme for smaller banks and building societies will operate;
• The risk of reclaim and the process involved;
• Ethical concerns regarding the use of the Big Lottery Fund as the distribution vehicle and as a barrier to applications for funding;
• Measures to ensuring that spend goes to worthwhile projects; and
• The reasons why dormant accounts could not be allocated directly to devolved administrations for distribution.

11. The Committee raised these issues formally with the Department and received a substantive written reply. A further evidence session was held with DFP officials on 7 November 2007. The Committee was content that its specific concerns had been adequately addressed by the Department.

12. On the key question of what would be the consequences if legislative consent is not given by the Assembly, DFP advised the Committee that it was likely that the UK Government would go ahead as planned, since financial services is a reserved matter. The Bill would be amended, removing the provisions conferring the function on DFP to set the NI priorities for spend and to give directions to the NI Committee of the Big Lottery Fund. Therefore, while the Welsh Assembly and the Scottish Parliament would have a power to set out particular spending areas for money apportioned to them, the NI Assembly would not have a similar power. An opportunity would therefore be missed to influence the spending priorities for NI and to give directions to the Big Lottery Fund. In addition, the voluntary and community sector in NI would be unable to feed their views into a local consultation process.

13. In general terms, therefore, whilst the Committee had reservations about the Bill, including the bureaucracy associated with some of the provisions, members agreed that a pragmatic approach was required to ensure that NI does not lose out significantly.

14. Consequently, the Committee agreed unanimously on 7 November 2007 to support DFP in seeking the Assembly’s endorsement of the principle of the extension of the provisions of the Dormant Bank and Building Society Accounts Bill to NI. The motion was agreed in plenary on 27 November 2007.

15. I trust that this information will be of assistance to the Procedures Committee’s ongoing inquiry into Legislative Consent. If you require any further information please do not hesitate to contact me.

Shane McAteer
Tel: 21843

Committee for the Environment

Committee for Social Development

Committee for Social Development
Room 412,
Parliament Buildings,
Stormont,
Belfast
BT4 3XX

Tel: 028 9052 1864
Mob:078 2514 1294
peter.mccallion@niassembly.gov.uk

To: Stella McArdle
Clerk to the Committee on Procedures
From: Peter McCallion
Date: 2 March 2009

Inquiry into Legislative Consent

At the Social Development Committee meeting of 26 February 2009, Members considered your correspondence relating to the Committee on Procedure’s Inquiry into Legislative Consent.

The Committee agreed that it would support an amendment to Standing Orders which would require the following to be provided, subject to the Committee’s approval:

• A briefing from the Minister or Departmental officials in respect of the need for a Legislative Consent Motion and the key points of the related Bill;
• A summary report of the relevant GB consultation;
• A research report setting out related issues; and
• A Bill report summarizing the Committee’s view.

The Committee also agreed that it would support an amendment to Standing Orders which would require:

• The Department to take out a public notice prior to the submission of the Legislative Consent Motion so as to ensure that key stakeholders are appropriately advised; and
• The Department to comply with a timetable for submission of a Legislative Consent Motion which would allow sufficient time for the Committee to consider representations from stakeholders and to formulate its own views.

Peter McCallion
Committee Clerk

Department of Finance and Personnel

Assembly Section
Craigantlet Buildings
Stormont
BT4 3SX
Tel No: 02890 529147
Fax No: 02890 529148

email: Norman.Irwin@dfpni.gov.uk

Stella McArdle
Committee on Procedures
Room 430
Parliament Buildings

Dear Stella

Legislative Consent Motions

Thank you for the opportunity to input to your inquiry into Legislative Consent Motions (LCMs).

Current Process

Since the return to devolution in May 2007 DFP has processed 2 LCMs one relating to the Forced Marriage (Civil Protection) Bill and the other to the Dormant Bank and Building Society Accounts Bill.

As you know the underpinning of LCMs is in the Memorandum of Understanding between the UK Government and the Devolved Administrations. This has been supplemented by Devolution Guidance Note 8 as well as the guidance provided by OFMDFM (dated November 2007).

The current process works well and in both cases, the agreement of the Assembly has been obtained to the extension to Northern Ireland of the relevant provisions. There was some initial uncertainty following restoration of devolution as to whether the Assembly Committee should be consulted before or after Executive agreement but our practice now is to consult with the Committee on the policy content before obtaining Executive agreement.

Westminster

The Whitehall Bill team will receive advice from their legal advisers on whether an LCM is required and NI officials will also have the opportunity to provide their views, but the final decision on whether a LCM is appropriate rests with the NI Minister. Since NI officials will have been involved with their UK counterparts prior to and during the drafting of the Bill (either by commenting on or providing instructions to Parliamentary Counsel) the issue of legislative consent should normally be considered at an early stage.

Assembly Committee

Going back to the Assembly Committee would only occur when there had been significant amendments to the transferred matters in the Bill including where these are not covered by the original LCM. However this was not the case in relation to the 2 DFP Bills referred to above.

Changes to current procedures

The formalisation of the Northern Ireland system should be considered. As our two cases have shown, there will be occasions when it is sensible for Westminster to consider Bills which contain matters which are transferred to the devolved administrations. However, I also consider that it is important that the devolved administrations are kept well informed of the progress of Westminster legislation which impacts upon the transferred field.

I would see merit in a new Standing Order of the Assembly which could set out the precise stages to be followed and the circumstances in which an LCM should be sought. The report of the Scottish Committee on Procedures which led to the introduction of a standing order of the Scottish Parliament is very comprehensive and covers all the points to be considered.

I would be concerned however that any new procedures should not prevent the Assembly taking a decision on legislative consent by the deadline set by the timetable for the Westminster Bill.

I hope this information is helpful to your Committee’s deliberations.

Norman Irwin

Department of Enterprise,
Trade and Investment

Stella McArdle
Clerk, Committee on Procedures
Northern Ireland Assembly
Room 430, Parliament Buildings
Stormont
Belfast BT4 3XX

Dear Stella 23 March 2009

Committee on Procedures – Inquiry into Legislative Consent Motions

1. Thank you for your 5 March 2009 letter seeking DETI’s comments in relation to a number of questions on its experience of dealing with Legislative Consent Motions. I have repeated these below along with our responses.

(a) What information is provided from Westminster and how suitable is it?

DETI officials would normally be contacted by their GB counterparts. Information would be provided in relation to the Policy proposals and policy consultation. The information provided would be suitable to allow Officials to make informed decisions about the way forward for NI.

(b) Is this information provided timeously?

DETI would normally be alerted early in the process. However, it can sometimes be very close to introduction before the final content of a Bill is known and therefore before any NI devolved provisions can be finalised. In the case of the Counter-Terrorism Bill, minor amendments altering the executive functions of the DETI were tabled so late in the process that there was insufficient time for the Minister to obtain an Assembly decision while the Bill could still be amended. The Minister made a statement to the Assembly on this on 24 November 2008. Also various amendments to the Energy Bill were put forward at a late stage of the Bill’s passage and while these may have been suitable for extension to NI, it was too late for the LCM process to be completed in time so on that occasion it was decided to exclude NI from that aspect of the Bill.

(c) What processes are in place to monitor the progress of bills in Westminster after the Assembly has approved the LCM?

Officials liaise closely with their counterparts in the lead UK Department on changes to the devolved provisions in a Bill as it progresses through Westminster.

(d) In what circumstances would the department consider going back to the Assembly committee?

Where there are significant amendments to the devolved provisions in a Bill, DETI will bring these to the attention of the Assembly Committee, and where the scope of the original LCM does not cover these amendments, a further motion will be brought to the Assembly for agreement.

(e) What changes, if any, would the department like to see to the current procedures?

DETI is broadly content with the current procedures.

Please do not hesitate to contact me if you require any further information.

Yours sincerely

David McCune

David McCune
DETI Assembly Liaison Officer
Department of Enterprise, Trade and Investment
Ext: 29422
Email: david.mccune@detini.gov.uk

Office of the First Minister
and Deputy First Minister

Background

1. The requirement for Assembly approval of Legislative Consent Motions derives from the agreement that the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature.

2. This agreement is sometimes referred to as the “Sewel Convention" because of the statement made by Lord Sewel during the course of the Committee stage of the Scotland Bill in the House of Lords on 21 July 1998 when he indicated that he “would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament".

3. This convention was formalised in the “Memorandum of Understanding and supplementary agreements between the United Kingdom Government, Scottish Ministers, the Cabinet of the National Assembly for Wales and the Northern Ireland Executive Committee", Cm 4806 July 2000 (the “MOU"). The MOU was agreed by the Executive and was the subject of a “Take Note" debate in the Assembly on 5 June 2000.

4. In particular paragraph 13 of the MOU (updated in Cm 5240[1]) states:

“The United Kingdom Parliament retains authority to legislate on any issue, whether devolved or not. It is ultimately for Parliament to decide what use to make of that power. However, the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government."

5. In addition to the MOU, the Ministry of Justice has prepared more detailed guidance for UK Government departments on handling legislation affecting the devolved administrations. This guidance takes the form of devolution guidance note DGN 8[2] for Northern Ireland and sets out the circumstances where UK departments should seek the agreement of the devolved administration before introducing legislation at Westminster which relates to Northern Ireland.

Position in the previous period of devolution

6. During the first period of devolution no detailed guidance had been produced for NI Departments on obtaining Assembly agreement to legislation at Westminster on devolved matters. Specific instances were dealt with on an ad hoc basis involving agreement by the Executive, and consultation with the relevant Assembly Committee followed by a motion and debate in the Assembly taken by the Minster with responsibility for the matter.

7. Examples were the extension to Northern Ireland of the consumer protection provisions in the Enterprise Bill and the extension of the Private Hire Vehicles (Carriage of Guide Dogs Etc.) Bill. A similar process was used in relation to the transfer of responsibility for Child Benefit from the Department of Social Development to the Inland Revenue in the Tax Credits Bill. All of these cases involved Executive approval, consultation with the relevant Committee and debate on a motion in the Assembly.

8. Prior to suspension, OFMDFM officials discussed with the Assembly Secretariat the procedures for obtaining Assembly agreement to legislation at Westminster on devolved matters. We are aware that his led in due course to the Business Committee agreeing proposed arrangements for handling Northern Ireland devolved matters included in Westminster legislation on 17 September 2002. It had been intended to put these proposals to the Committee Chairpersons’ Liaison Group for views, following which a protocol would have been brought back to the Business Committee for agreement and then the Executive’s views sought, but suspension brought this work to a halt.

Procedural developments since May 2007

9. The Ministry of Justice re-issued DGN 8 to Whitehall Departments on restoration of the Assembly and following consultation with the Assembly Secretariat, the Legislative Programme Secretariat (LPS) in OFMDFM made available complementary guidance to NI Departments in November 2007. This guidance, which we understand the Committee already has, reflects broadly the proposed arrangements agreed by the Business Committee in 2002 – consultation with the relevant Assembly Committee followed by agreement of the Assembly as a whole – except that it restricts the need for Assembly agreement, by means of approval of a “Legislative Consent Motion" (LCM), to Westminster primary legislation, while accepting nevertheless the need for full consultation with the relevant Assembly Committee where it is proposed to include devolved matters in Whitehall subordinate legislation.

10. The guidance note also clarifies that a LCM is only required when primary legislation makes provision for a substantive devolved purpose and not in relation to transferred matters only incidentally to, or consequentially upon, provision made in relation to a reserved or excepted matter. In addition, the guidance does not apply to legislation which deals with emergencies or is otherwise exceptional.

11. However, in addition to the requirement for a LCM for provisions which:

a. deal with substantive non-emergency transferred matters;

the guidance also requires a LCM for provisions which:

b. alter the legislative competence of the Assembly; or

c. alter the executive functions of NI Ministers or Departments.

12. In relation to the final area, it has been the practice of NI Ministers to bring all instances that they are aware of where executive functions are to be altered by a Westminster Bill to the Assembly for agreement, even where the UK Government does not feel that this is required for its purposes because such alterations are relatively minor.

13. The guidance envisages, where possible, at least a two-stage engagement with the relevant Assembly Committee leading up to the tabling of a LCM by the responsible Minister for Assembly approval. The first, prior to the Bill’s introduction, is consultation on the policy underlying the proposed provisions and the principle of using a Westminster Bill (as opposed to an Executive Assembly Bill) to legislate for these; and secondly, following the Bill’s introduction, is an explanation of the Bill’s detailed provisions and consultation on the terms of the proposed LCM.

Legislative Consent Motions since May 2007

14. From restoration of devolution in May 2007 until the end of the 2007/2008 Parliamentary session, ten LCM were passed by the Assembly as set out in the Annex. Currently we are aware of the potential, subject to consultation with Assembly Committees and agreement by the Executive, for the Assembly being asked to approve up to five LCM in relation to Bills which have been introduced in the 2008/2009 session.

Assessment of experience to date

15. Overall our assessment is that the current procedures have worked reasonably well in practice since May 2007 in terms of recognising the interests of the various parties involved – on the one hand, NI Ministers, the Executive, Assembly Committees and the Assembly itself and on the other, UK Departments and Parliament. However it has to be recognised that the time available to carry out the recommended procedures is constrained by the Parliamentary timetable for the Westminster Bill. So that this is not delayed, the UK Government expects that the Assembly will be afforded the opportunity to decide on the LCM before the Bill enters it final amending stage in the First House (the House in which it was introduced) - Report Stage in the Commons and Third Reading in the Lords. This is so that the provisions can be removed if the Assembly does not agree their retention before the Bill enters the Second House.

16. Normally this should not cause any problems providing there has been engagement at an early stage between the relevant Whitehall and NI Departments. However, difficulties can arise where the content of a Westminster Bill is not finalised until shortly before introduction or where amendments are tabled after introduction. In such cases the procedural steps set out in the guidance need to be adapted to take account of the time available.

17. Unfortunately, in the case of the 2008 Counter Terrorism Bill, minor amendments altering the executive functions of the Department of Enterprise, Trade and Investment were tabled so late in the process that there was insufficient time for the Minister to obtain an Assembly decision while the Bill could still be amended. However, the Minister made a statement to the Assembly explaining the background to the situation, apologising for not bringing a LCM to the Assembly because of the timescales involved and providing assurances in relation to future cases.

18. The Legislative Programme Secretariat in OFMDFM in relation to NI Departments and the Legislation and Parliamentary Unit in NIO in relation to UK Departments continue to encourage early engagement between officials in the two jurisdictions on potential LCM so as to maximise the amount of time available to comply with the recommended procedures. In addition, progress is monitored by means of monthly legislation monitoring returns to LPS and at bi-monthly meetings of the official level Legislation Monitoring Committee chaired by the Head of Executive Division in OFMDFM. The LPS also keeps its detailed procedural guidance under review and is currently consulting Departments on what improvements might be made to this in the light of experience to date.

Legislative Programme Secretariat
OFMDFM
February 2009

Annex

Legislative Consent Motions from Restoration to end of 2007/2008 Parliamentary Session

Bill	Motion	Considered by Assembly	Comment
Forced Marriage (Civil Protection)	That this Assembly endorses the principle of the extension of the provisions of the Forced Marriage (Civil Protection) Bill to Northern Ireland.	11 June 2007	Private Member’s Bill
Child Maintenance and Other Payments	That this Assembly endorses the principle of the extension to Northern Ireland of provisions of the Child Maintenance and Other Payments Bill dealing with the use of information which are contained in clause 39 of, and paragraphs 4 to 6 of Schedule 6 to, that Bill as introduced in the House of Commons.	22 October 2007
Dormant Bank and Building Society Accounts	That this Assembly agrees that the provisions in the Dormant Bank and Building Society Accounts Bill relating to the distribution in Northern Ireland of sums released from dormant bank and building society accounts should be considered by the UK Parliament.	27 November 2007
Criminal Justice and Immigration	That this Assembly endorses the principle of the extension to Northern Ireland of provisions of the Criminal Justice and Immigration Bill dealing with nuisance or disturbance on Health and Social Services premises which are contained in clause 107 of, and Schedule 18 to, that Bill as introduced in the House of Commons.	3 December 2007
Climate Change	That this Assembly endorses the principle of the extension of the provisions of the Climate Change Bill to Northern Ireland.	10 December 2007
Health and Social Care	That this Assembly endorses the principle of the extension to Northern Ireland of provisions of the Health and Social Care Bill dealing with the entering into of arrangements with the Care Quality Commission; regulation of health professions; the health in pregnancy grant (including provision for making such grant an excepted matter under the Northern Ireland Act 1998); and the abolition of the National Biological Standards Board.	14 January 2008	As the new health in pregnancy grant is to be made an excepted matter while the general area within which it falls, namely social security, is transferred, it was felt desirable to bring the Assembly’s attention to this addition to Schedule 2 of the NI Act 1998.
Education and Skills	That this Assembly endorses the principle of the extension to Northern Ireland of provisions of the Education and Skills Bill dealing with the functions of the Qualifications and Curriculum Authority which are contained in clauses 137 and 139 of that Bill as introduced in the House of Commons.	29 January 2008	This LCM is drafted in line with previous examples where only a small number of clauses in a large Bill extend to NI. In these cases the approach is to identify the clauses by number. Again in line with past practice provisions which extend to NI that deal only with commencement and other final provisions on extent, short title ,etc are regarded as de minimis for the purposes of the LCM and not mentioned in the motion.
Energy	That this Assembly endorses the principle of the extension to Northern Ireland of the provision of the Energy Bill dealing with gas storage which is contained in clause 35 of, and paragraph 5 of Schedule 1 to, that Bill as introduced in the House of Commons.	18 February 2008
Pensions (1)	That this Assembly endorses the principle of the extension to Northern Ireland of provisions of the Pensions Bill as introduced in the House of Commons dealing with the Pensions Regulator Tribunal, information relating to private pensions policy and retirement planning, the power to establish a pension scheme, the remit of the Personal Accounts Delivery Authority, the Pension Protection Fund and the Fraud Compensation Fund; and of amendments to that Bill introducing new provisions to the Financial Assistance Scheme.	26 February 2008
Pensions (2)	That, further to the Legislative Consent Motion passed on 26 February 2008, this Assembly endorses the principle of the extension to Northern Ireland of additional amendments to the Pensions Bill dealing with the Pensions Regulator, persons working on vessels and persons in offshore employment and pre-consolidation modifications to pensions legislation.	1 July 2008

[1] http://www.justice.gov.uk/guidance/mou.htm

[2] http://www.justice.gov.uk/guidance/devolutionguidancenotes.htm

Additional Submission from OFMDFM

Executive Division
Legislative Programme Secretariat
Level 5, Block A
Castle Buildings
Stormont Estate
BELFAST BT4 3SR
Tel: 028 9052 2440 (Ext 22440)

E-mail: Jim.Hamilton@ofmdfmni.gov.uk

Stella McArdle
Clerk, Committee on Procedures
Northern Ireland Assembly
Room 430, Parliament Buildings
Stormont
Belfast
BT4 3XX 24th March 2009

Dear Stella

Legislative Consent

Thank you for your letter of 5 March enclosing some additional questions on legislative consent procedures. I have repeated these below along with our responses.

(a) What processes are in place to identify those Westminster bills which may require a Legislative Consent Motion (LCM)?

The primary responsibility for identifying potential provisions in a proposed Westminster Bill which may require a LCM rests with the lead UK Department. In such cases the UK Minister should approach the NI Minister with responsibility for the policy area. Bills will not receive clearance for introduction to Parliament from the UK Cabinet Legislation Committee until devolution issues have been resolved. If a Bill extends to Northern Ireland, the Committee will look to see if a LCM is necessary and, if so, what stage in the process of obtaining a LCM has been reached.

(b) What happens if NI is not contacted? Are there any ‘fallback’ procedures to identify these bills?

We are not aware of any cases when the NI Administration has not been contacted where a LCM would be required. Under the Memorandum of Understanding, the UK Government and the NI Administration are committed to the principle of good communication, especially where the work of one would have implications for the work of the other and we aware of good examples of close liaison on legislative proposals in particular. In addition, the UK Government published draft Legislative Programmes for the 2007-08 and 2008-09 sessions in July 2007 and May 2008 respectively. These were brought to the attention of NI Departments so that they could approach their Whitehall counterparts on implications for devolved matters that they may not already have been alerted to. In addition, the Legislative Programme Secretariat (LPS), OFMDFM commissions monthly returns from NI Departments seeking updates on Whitehall legislation which contains, or has the potential to contain, devolved provisions within their area of responsibility. The situation is also reviewed at bi-monthly meetings of the official level Legislation Monitoring Committee chaired by the Head of Executive Division in OFMDFM.

(c) What are the roles of the Legislative Programme Secretariat and the NIO in the process?

Besides commissioning monthly updates and organising meetings of the Legislation Monitoring Committee, the LPS continues to encourage NI Departments to liaise closely with their UK Department counterparts so that where a LCM is required as much notice as possible is given to the relevant Assembly Committee and the necessary agreement obtained from the Executive. The LPS provides procedural guidance to Departments and is available to advise on individual cases. It liaises on the UK Government’s overall Legislative Programme with NIO which in turn is available to advise UK Departments on the NI devolution settlement and the procedural requirements for NI Ministers to bring LCM to the Assembly. The link between the Legislative Programme Secretariat and NIO is important in ensuring the process of obtaining a LCM is as smooth as possible.

(d) On the basis of past bills, how much notice is usually given to departments?

NI Departments can be alerted quite early in the preparation of a proposed Westminster Bill where there is a policy consultation and/or consultation or pre-legislative scrutiny on a draft Bill. However, it can sometimes be very close to introduction before the UK Government decides on the final content of a Bill and therefore before any NI devolved provisions can be finalised. There have also been instances of proposals for significant amendments to Bills not arising until after introduction.

For example, the Department of Culture, Arts and Leisure has been aware since the end of 2006 of proposals for a draft Cultural Property (Armed Conflicts) Bill and received the endorsement of the Culture, Arts and Leisure Committee to the extension of the Bill to NI in October 2007. However, although a draft of the Bill was published for pre-legislative scrutiny in January 2008 and the provisions were to be included in a Heritage Protection Bill as listed in the UK Government’s draft Legislative Programme for 2008-09, to date they have not been introduced at Westminster. On the other hand, in the case of the Counter-Terrorism Bill, minor amendments altering the executive functions of the Department of Enterprise, Trade and Investment were tabled so late in the process that there was insufficient time for the Minister to obtain an Assembly decision while the Bill could still be amended. The Minister made a statement to the Assembly on this on 24 November 2008.

(e) What factors can impact on the period of notice?

Probably the main factors are the extent of public consultation prior to the Bill’s introduction, how long before introduction final decisions are taken on the Bill’s content and how quickly a conclusion is reached on the necessity or otherwise of a LCM.

(f) Before the bill is laid in Westminster, what assessments and consultations on the initial draft is the NI department expected to carry out?

Normally if there is to be public consultation on a draft Bill it would be carried out by the lead UK Department. This was done, for example, in relation to the draft Marine Bill which was issued for consultation by the Department of the Environment, Food and Rural Affairs in April 2008 following two previous policy consultations. On each occasion the consultation documents were issued to all relevant NI interests. During the first consultation DOE jointly with DARD undertook a series of “road-shows" throughout the province to seek views on the proposals. The Bill – the Marine and Coastal Access Bill - was subsequently introduced on 4 December 2008 and the Assembly passed the relevant LCM on 2 March 2009.

The LPS guidance to NI Departments reminds them however that policy responsibility for devolved provisions in a Westminster Bill remains with the relevant Department here. Before agreeing to have such provisions included in a Westminster Bill, Departments are advised to consider to what extent the normal policy development process has been undertaken in respect of the NI provisions, including, where appropriate, consultation and equality and other impact assessments. For example, the Apprenticeships, Skills, Children and Learning Bill which was introduced on 4 February 2009, amends the system for the regulation of vocational qualifications in Northern Ireland. The Department of Employment and Learning conducted a public consultation exercise on the proposed new regulatory arrangements from August to the end of October 2008. In relation to the Marine and Coastal Access Bill policy proposals mentioned above, DOE undertook an equality screening exercise.

(g) At what stage would the department first consult with the Assembly Committee?

This will vary from case to case but could be as early in the process as public consultation on the policy or a draft Bill, where such consultation is carried out. Ideally the Assembly Committee should be consulted once a decision in principle is taken by the Minister responsible on whether devolved provisions should be included in the Bill prior to introduction. Where this is not possible, then at the very least the Committee should be consulted as soon as possible after the Bill’s introduction. This could be later when it is proposed to introduce devolved provisions to a Bill which did not require a LCM at introduction.

Again, taking the Marine and Coastal Access Bill as an example, DOE first contacted the Committee for the Environment in January 2008, followed by a synopsis of the consultation on the draft Bill in May 2008. Advance notice of the Bill’s introduction was given to the Committee at the end of October and the terms of the proposed LCM in December. The Committee indicated that they were content with the terms of the LCM at the end of January this year.

(h) Are there any procedures in place to monitor changes to bills as they progress through Westminster?

There should be close liaison between the lead UK Department and corresponding NI Department on changes to the devolved provisions in a Bill as it progresses through Westminster.

(i) How does the department know and/or react if the bill is significantly amended after the LCM has been approved by the Assembly?

Where there are significant amendments to the devolved provisions in a Bill, the NI Department will bring these to the attention of the Assembly Committee, and where the scope of the original LCM does not cover these amendments, a further motion will be brought to the Assembly for agreement.

(j) Having agreed the policy, what happens if the committee is not content with the bill in so far as it applies to NI?

This would be a matter for the Assembly Committee, but in addition to making representations to the Minister concerned, the Committee could also make its views known to the Assembly as a whole when it comes to the debate on the LCM.

(k) Can the motion for legislative consent as tabled by the Minister, be amended in any way?

This would be a matter for the Speaker but it would be essential that any motion, if passed following amendment, should still provide absolute clarity on the decision of the Assembly with regard to the relevant provisions. Amendments which sought, for example, to impose conditions or make consent contingent on other actions could lead to uncertainty and in some circumstances lead to the withdrawal of the NI provisions from the Bill if there was insufficient time for a Minister to fulfil these requirements.

(l) What would be the likely consequence if the Assembly did not approve the LCM?

The UK Government would table amendments to the Bill to remove the provisions which had not obtained the Assembly’s consent

(m) At present, Assembly committees do not issue a report of their considerations. Would you see any advantages/disadvantages if they did formally report?

This would be a matter for the Committee concerned, but there could be advantages in the Assembly having a written report of the Committee’s consideration (and for this to be available to the public generally) to inform the debate in plenary and decision on the LCM. However, given that the Assembly will normally be working to a deadline for a decision (the final amending stage in the House in which the Bill was introduced) the time required to produce a report could reduce significantly the time available for Committee consideration of the issue.

(n) Is there an agreed format or wording for LCMs to be approved by the Assembly or do departments differ as they consider fit?

The decision on the wording of a LCM is a matter for the Minister responsible. However, normally this would be along the lines of “That this Assembly endorses the principle of the extension to Northern Ireland of provisions of the [name of Bill] dealing with [subject areas by reference to parts, chapters or clauses and schedules as appropriate]". An alternative is “That this Assembly agrees that the provisions in the [name of Bill] relating to [subject area relating to parts, chapters or clauses and schedules as appropriate] in Northern Ireland should be considered by the UK Parliament". To try to ensure a reasonably consistent approach, prior to submitting a recommended wording to their Minister (and the Assembly Committee), Departments would normally consult LPS and it in turn would take advice from Legislative Counsel and informal soundings with the Business Office.

(o) What are the procedures for dealing with Private Member’s bills (PMBs) arising in Westminster, eg, initial identification and notification?

Given that it is unlikely that a Private Member’s Bill will progress at Westminster without Government support, normally no action is taken on such Bills until it is clear that such support will be forthcoming. Where a Bill does get such support the procedures are basically the same as for Government Bills.

(p) What is the Minster’s/Executive’s role in connection with PMBs?

The UK Minister will approach the NI Minister to determine whether NI devolved provisions should be retained in, or added to, the Bill; the Assembly Committee should be consulted and the Executive’s agreement obtained before a LCM is tabled for decision by the Assembly.

(q) Have any PMBs to date required a LCM?

Since restoration of the Assembly in May 2007, one Private Member’s Bill, the Forced Marriage (Civil Protection) Bill, required a LCM and this was passed by the Assembly on 11 June 2007.

(r) Is the devolution of policing and justice likely to increase the number of LCMs?

The number of LCM required in relation to any one Westminster session will depend on the subject matter of the Bills in the UK Government’s Legislative Programme and, where they deal with matters which are devolved in NI, the extent to which NI Ministers, including any future Minister of Justice, consider it appropriate to have provisions included in those Bills relevant to their areas of responsibility.

(s) As you know, the Scottish Parliament amended its Standing Orders to address the issue of LCMs. What are your views on the relevant Scottish Standing Orders and procedures? Are there any changes to these Standing Orders and procedures which may improve the procedures within Northern Ireland?

Broadly speaking the procedures set out in the Scottish Parliament’s Standing Orders are not that far away from what currently happens in relation to the Assembly except that here there is no requirement on NI Departments to formally lay a memorandum before the Assembly or for the relevant Assembly Committee to produce and lay a written report. We think, however, there might be merit, if your Committee was minded to recommend a similar standing order for the Assembly, to consider:

(i) stating the exceptions to the requirement for a LCM as in the Standing Order for the National Assembly for Wales – we would be happy to provide a detailed wording, appropriate for our situation and reflecting current practice and procedures, if it would assist the Committee;

(ii) stipulating that motions should be clear about the intentions of the Assembly and that neither they nor the effect of any amendments should seek to impose conditions or demands, make consent contingent on something else happening or otherwise lead to uncertainty as to what the Assembly’s decision is on the matter; and

(iii) restricting the requirement for a memorandum in relation to Private Members’ Bills to those supported by the UK Government or those passing the first amending stage in the Commons (whether they are introduced in the Commons or the Lords) whichever is earlier. We feel that the requirement in the Scottish Parliament’s Standing Orders for this to be done for Bills introduced in the Lords and passing the first amending stage in that House could lead to memoranda being laid for Bills which have no realistic chance of progressing in the Commons and lead to nugatory work for Departments and Committees.

Please do not hesitate to contact me if you require any further information.

Yours sincerely

[signed]

JIM HAMILTON

Department of the Environment

Central Management Branch
10-18 Clarence Court
Belfast
BT2 8GB
Telephone: 028 90 5 40855
Facsimile: 028 90 5 41169
Email: una.downey@doeni.gov.uk
Your reference:
Our reference:

Date: 25 March 2009

Mrs Stella McArdle
Clerk to the Committee on Procedures
Room 430
Northern Ireland Assembly
Parliament Buildings
Stormont
Belfast BT4 3XX

Dear Stella

You wrote to me on 5 March about the Committee on Procedures’ inquiry into Legislative Consent Motions. You sought the Department’s views on the current processes and asked for any comments relating to specific experiences. You also asked what changes, if any, the Department would like to see to the current procedures. I have provided information below relating to the initial stages of the LCM process, the consultation stage and to action taken once the Bill is introduced in Westminster.

Initial action

Responsibility for identifying potential provisions in a proposed Westminster Bill which may require a LCM rests with the lead UK Department. In such cases the UK Minister should approach the NI Minister with responsibility for the policy area.

During the first spell of devolution DOE and other departments agreed concordats with UK counterparts. These sat under the over-arching Memorandum of Understanding (MOU) signed by the First Minister and deputy First Minister and the Prime Minister which set out a set of principles on working relationships and engagement. The DOE Concordat covered how in practical terms the Department should deal with transferred, excepted and reserved matters with a key theme being timely and effective communication on both sides on proposals which would be of interest.

Beyond this Concordat there is no set procedure in place within DOE to identify Bills which may require a LCM, although the TSO weekly list is circulated, and the contents checked for forthcoming Westminster Bills with implications for future policy development and legislation. In general, though, the Department relies heavily on relationships between officials.

It is very important for officials and UK counterparts to know the legislative status of the subject matter with which a Bill is concerned (i.e., whether excepted, reserved or transferred under the Northern Ireland Act 1998) and to seek legal advice as to whether a LCM would be necessary. In the case of the UK Marine and Coastal Access Bill, the Department of the Environment, Food and Rural Affairs (Defra) was very alert to the issue from the outset. The need for a LCM was agreed early on in the process and the then Minister made this clear when she first took her proposals to the Executive in March 2008.

In the case of the Climate Change Bill, DOE was fully engaged by Defra in intentions to develop a UK Bill in the period between January and March 2007, during a direct rule situation. This led to publication of a draft Bill for consultation in March 2007.

While recent experiences of the process have been positive, there have been occasions where the Department has been given very short notice of the NI implications of a Bill, such as in the cases of the Public Hire Vehicles (Carriage of Guide Dogs) Bill 2002 and the Local Democracy, Economic Development and Construction Bill. In respect of the latter, the Department was given only three weeks to reply before the UK Department for Communities and Local Government submitted papers to their Committee. This deadline was very tight, as DOE had to obtain legal advice. The advice indicated that no LCM was necessary, so the Department did not need to take further action on that occasion.

Where delays do occur, the key factor to impact on the period of notice may be the need to introduce a speedy policy change as a result of Ministerial intervention. This seemed to be the driver in the case of the Energy Act 2008 in which DOE had a peripheral involvement. The new legislation was needed urgently to facilitate a pilot carbon capture and storage facility in Wales announced by then DBERR Minister.

Another common problem is that policy colleagues in GB may begin the process of policy development and consultation without realising the appropriateness of including NI. By accident more than design, NI will jump aboard at a late stage when the period of notice will consequently be limited. While the above mentioned Concordat does not prevent this kind of situation occurring, it does afford the Department some opportunity for redress.

Consultation

The first of three consultations on policy development relating to the Marine and Coastal Access Bill took place pre-devolution in 2006 and DOE has been fully involved in the process since then, although involvement in the Bill decreased post-devolution. During the first consultation on policy proposals, DOE, jointly with DARD, undertook a series of road-shows throughout the province to seek views on the proposals. DOE, in consultation with other relevant NI departments, was closely involved in the preparation of the draft clauses impacting on Northern Ireland contained in the consultation draft of the Bill. DOE also carried out an equality screening of the proposals. A LCM was obtained on 2 March 2009.

Public consultation on the Climate Change Bill was on a UK wide basis and involved specific consultation with other Departments. After devolved government was formed in May 2007, direct consultation was undertaken by DOE with the Environment Committee, other Ministers and the Executive.

Introduction in Westminster

There should be close liaison between the lead UK Department and corresponding NI Department on changes to the devolved provisions in a Bill as it progresses through Westminster. Where there are significant amendments to the devolved provisions in a Bill, the Department will bring these to the attention of the Assembly Committee, and where the scope of the original LCM does not cover these amendments, a further motion will be brought to the Assembly for agreement.

In the case of the Climate Change Bill DOE officials were fully engaged with the Defra team throughout the process, ensuring NI issues were properly reflected in the shape of the Bill. If significant amendments are made, officials will seek legal advice and guidance from DSO, Legislative Programme Secretariat (LPS) and the Office of the Legislative Counsel.

Likewise, relevant amendments to the Marine and Coastal Access Bill are being brought to officials’ attention by Defra counterparts and officials are being asked for views. Because there has been considerable and inclusive policy consultation on the Marine and Coastal Access Bill, officials do not anticipate significant amendments to the parts of the Bill which extend to Northern Ireland. In addition, the terms of the LCM are sufficiently flexible to accommodate any minor changes which may occur.

Conclusion

I understand that officials from LPS recently made a presentation to the Committee on LCMs and that you wrote to them requesting further information following that. In drafting a response LPS sought comments from Departments and I have attempted in the above response to avoid excessive duplication by providing specific examples of this Department’s experience of the processes.

Officials are not in a position to comment on the technical accuracy of the current procedures issued by LPS in November 2007, and are always grateful for the provision of any guidance, whether in the form of written procedures or case-specific advice. It is important that the procedures be kept up to date and it should be noted that they will therefore need technical amendment if the proposed Standing Order for LCMs comes into effect. At that time, LPS may consider whether there is scope for the procedures to be written and presented in a more concise and user-friendly way.

I trust this information is of assistance, should you require anything further please contact me directly.

Yours sincerely,

Úna Downey
DALO

Department for Employment and Learning

Department for Social Development

Departmental Assembly Liaison Officer
Mr John Ball

4th Floor, Lighthouse Building
1 Cromac Place
Gasworks Business Park
Ormeau Road
BELFAST
BT7 2JB

Mrs Stella McArdle
Clerk to the Committee on Procedures
Room 430
Northern Ireland Assembly
Parliament Buildings
Stormont
Belfast BT4 3XX 27 April 2009

Dear Stella

Legislative Consent Motions

Thank you for your letter of 5 March seeking the Department’s views on the current processes for Legislative Consent Motions (LCMs). I am sorry that it did not prove possible to meet your original deadline but your letter did not arrive with the Department until 25 March. I trust the information below will be of assistance in your Committee’s inquiry.

The Department has taken forward a number of LCMs and for the most part the processes have worked reasonably well. To date, our LCMs have been linked to the broad social security field and this Department maintains close working relations with the Department for Work and Pensions (DWP). This relationship is particularly important given the statutory responsibilities relating to the maintenance of parity between systems for social security, pensions and child support in Northern Ireland and Great Britain.

Both Departments are alert to the need to identify areas where an LCM may be necessary and both scrutinise proposed Bills to identify, at as early a stage as possible, areas where an LCM may be necessary.

The Department seeks to consult the Social Development Committee at an early point in the process. However, practice is to wait until there is a reasonable degree of certainty over the proposals in order to be as clear as possible on, amongst other things, the potential need for an LCM.

However, the reality is that provisions requiring an LCM may emerge late in the process, for example where a Ministerial decision on the Westminster Bill is taken at a late stage or where the Bill is amended during the parliamentary process. This can result in provisions necessitating an LCM being introduced at a late stage in the process or indeed necessitating a further motion, sometimes with very short advance notice.

In order to be alert to these possibilities the Department routinely monitors all amendments to the Westminster Bill during its passage. Where such a further provision is identified, we would revert to the Executive Committee, departmental Committee and bring forward a further Legislative Consent Motion.

In terms of the current procedures, colleagues have observed that the requirements around LCMs do not differentiate between (often minor) technical amendments and substantive policy issues. On that basis there may be an argument for introducing a simplified process, or an exemption, for dealing with minor technical and consequential amendments.

I hope this response is helpful.

Sent by E-Mail

John Ball
Departmental Assembly Liaison Officer

cc. Clerk to the Social Development Committee

Office of the Parliamentary Counsel

House of Lords

From: BEAMISH, David [mailto:BEAMISHD@PARLIAMENT.UK]
Sent: 19 March 2009 09:11
To: +Comm. Procedures Public Email
Cc: MCLEAN, Richard; JONES, Sarah; Public Bill Office, HoL
Subject: Legislative consent motions (FAO Stella McArdle)

Thank you for your letter dated 2 March inviting submissions of evidence to the Committee on Procedures of the Northern Ireland Assembly. I apologise for the fact that this reply is reaching you slightly later than you had asked for. I had hoped to be able to consult my colleague Tom Mohan, Clerk of Public and Private Bills, but unfortunately he has been on sick leave and has not yet returned. I have however consulted other colleagues in the Public and Private Bill Office.

This reply deals with the final stages of the processes the Committee is investigating, namely once the Assembly has agreed a legislative consent motion. I don’t think I have any useful comments to offer on the other issues raised in the inquiry’s terms of reference.

When the Northern Ireland Assembly agrees a legislative consent motion on a bill which is currently under consideration at Westminster, the Clerk to the Assembly writes to the Clerk of the Parliaments to notify him of the agreed motion. The Clerk to the Assembly attaches the relevant extracts from the Assembly’s Official Report.

The Clerk of the Parliaments sends a letter of acknowledgement in reply. The correspondence is kept in the Public and Private Bill Office of the House of Lords.

There is a system in place for recording the legislative consent motions passed by the Scottish Parliament by means of an annotation next to the relevant bill where bills in progress are listed in the House of Lords Business document. This has not been extended to legislative consent motions passed by the Northern Ireland Assembly, as there has been no request for such annotations to be published. But it would not be difficult to do.

May I take this opportunity to wish the Committee’s inquiry well. I look forward to hearing its outcome.

David Beamish
Clerk Assistant, House of Lords, London SW1A 0PW
020 7219 3171

House of Commons

Appendix 4

Northern Ireland Assembly Research Papers

Research and Library Services

26 February 2009

Legislative Consent in the
Northern Ireland Assembly
and other Legislatures

Claire Cassidy
Research and Library Service

This paper is prepared for the Members of the Committee on Procedures of the
Northern Ireland (NI) Assembly. This paper is prepared to facilitate Members’ understanding of
both the concept of Legislative Consent and the procedures and practices involved in the
NI Assembly and other legislatures.

Library Research Papers are compiled for the benefit of Members of The Assembly and their
personal staff. Authors are available to discuss the contents of these papers with Members and their
staff but cannot advise members of the general public.

Summary of key points

This paper details the current procedures underpinning Legislative Consent in the Northern Ireland (NI) Assembly and other Legislatures. By reviewing the procedures and practices in other Legislatures, a number of issues have been identified which the Committee on Procedures may wish to consider further.

The following paragraphs provide a summary of those issues:

• One issue relates to the timing of a legislative Consent Motion. This is due to a number of concerns raised over the issue of significant changes being made to specific provisions of a Bill during its passage through Westminster.
• Another issue relates to criticisms which have been raised with regards to the Sewel Convention in Scotland, which the Committee on Procedures may wish to take account of during their inquiry. These concerns relate to the frequency of use of Sewel motions.
• Another issue relates to the reporting format of the relevant Committee on the UK Bill. At present in the NI Assembly a report of the Committee’s considerations is given verbally by the Chair of the Committee in responding to the Minister during the motion debate itself. With regards to this issue, the Procedures Committee may wish to consider if it would be appropriate for the relevant NI Committee to report in writing to the Assembly before the Legislative Consent Motion is taken.

Contents

Introduction

Part One: Northern Ireland

Background

Part Two: Scotland

Origins and Development of the Sewel Convention

Criticisms and Limitations of the Convention

Part Three: Wales

Part Four: Potential Issues for Consideration

Introduction

This paper has been prepared for Members of the Committee on Procedures by Research and Library Service. The purpose of this briefing paper is to facilitate the Committee’s understanding of the procedures surrounding the process of Legislative Consent both in the Northern Ireland (NI) Assembly and in other legislatures. In particular this paper provides information on the following:

(a) Current procedures in the NI Assembly including those occasions where Legislative Consent Motions have been brought before the Assembly and whether there were any significant changes in the Bills in Westminster after the Motions were passed.

(b) Comparative information on the procedures used in other legislatures including Wales and Scotland, with particular reference being made to the ‘Sewel Convention’ in Scotland.

The Committee is currently reviewing the procedures surrounding Legislative Consent in the NI Assembly and has agreed upon the Terms of Reference for its Inquiry. These are:

• to identify those circumstances in which use of a Legislative Consent Motion is considered appropriate;
• to review the processes through which Legislative Consent Motions are introduced to the Assembly;
• to examine the arrangements for consultation with and consideration and reporting by committees of the proposed legislation and its outworkings;
• to consider the need to introduce a Standing Order to address the issues identified within the inquiry; and
• to report to the Assembly making recommendations, as necessary, on the findings of the Committee on Procedures.

In general terms, Legislative Consent refers to the agreement given by a devolved administration to allow the UK Parliament to legislate on an issue which the devolved administration would have regular legislative authority over (i.e. a devolved/ transferred matter). The UK Government, the Scottish Ministers, the Welsh Assembly Government and the Northern Ireland Executive have agreed a Memorandum of Understanding (MOU) setting out the principles that underlie relations between them with regards to this process. The MOU between the UK Government and the devolved administrations states:

“The United Kingdom Parliament retains authority to legislate on any issue, whether devolved or not. It is ultimately for Parliament to decide what use to make of that power. However, the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government."[1]

In other words, although the UK Parliament can legislate on any issue including devolved matters, it would not normally do so without first obtaining agreement or consent from the relevant devolved administration. As each devolved administration has its own devolved settlement (i.e. the Northern Ireland Act 1998, the Scotland Act 1998 and the Government of Wales Act 1998), this statement will have a slightly different meaning for each of them. This is because each devolution settlement gives different powers to the legislatures in question. In each case however, the relevant UK Department will need to ascertain at an early stage whether each provision in the UK Bill relates to devolved, reserved or transferred matters under each settlement and ensure that the devolved administration share their understanding of this. If any of the provisions in the UK Bill relate to devolved matters, a Legislative Consent Motion will need to be secured in the devolved legislature.[2]

As the devolved administration cannot seek to promote a Legislative Consent Motion until the Bill has been Introduced at Westminster, at this stage the UK Bill Minister will need to secure the devolved administration’s agreement in principle to promote a Legislative Consent Motion. The devolved administration would then be expected to secure the Legislative Consent Motion before the UK Bill completes its final amending stage in the first House at Westminster. Practice has established that the devolved administrations are consulted at an early stage of the proceedings so that any devolution issues are resolved before the UK Bill is approved for Introduction to the UK Parliament.[3]

Part One: Northern Ireland

Background

There are no formalised procedures in the NI Assembly with regards to Legislative Consent. However, guidance notes have been produced outlining the process which the UK Government and the NI Executive should follow when seeking Legislative Consent from the Assembly. There have been eight Legislative Consent Motions since the Assembly was restored in 2007, all of which have followed the processes outlined in the guidance notes. The eight UK Bills which have required a Legislative Consent Motion in the Assembly are outlined below, along with the date in which they were agreed.

• The Child Maintenance and Other Payments Bill – 22 October 2007
• The Dormant Bank and Building Society Accounts Bill – 27 November 2007
• The Climate Change Bill – 10 December 2007
• The Criminal Justice and Immigration Bill 2007
• The Health and Social Care Bill – 14 January 2008
• The Education and Skills Bill – 29 January 2008
• The UK Energy Bill – 18 February 2008
• The Pensions Bill – 1 July 2008

In practice, the relevant NI Minister will notify the Speaker and the Chairperson of the relevant Assembly Committee of the intention of the UK Government to legislate on NI devolved matters as soon as he/she is aware of the proposals.[4] For example once the Minister for Health was informed of the provisions affecting NI within the Health and social Care Bill, he wrote to the Health, Social Services and Public Safety Committee of the Assembly on the 24 September 2007, informing the Members of such proposals.

Once the Minister has informed the relevant Committee, the Chairperson can request a briefing from the Minister or Departmental Officials. This provides Members with the opportunity to explore fully the details of the proposals of the UK Bill.[5] With regards to the example of the Health and Social Care Bill previously outlined, Departmental Officials briefed the Health, Social Services and Public Safety Committee on issues relating to the Bill on the 18 October 2007. This process allowed the Minister for Health to gain the agreement of the Committee in principle to support a Legislative Consent Motion.

Once the relevant NI Minister has gained the support of the relevant Assembly Committee, the Minister will lodge a Legislative Consent Motion for plenary debate. This Legislative Consent Motion would seek the endorsement of the Assembly to the Minister’s proposal.[6] In relation to the example of the Health and Social Care Bill, a Legislative Consent Motion was debated in the NI Assembly on the 14 January 2008 after the Introduction of the Bill in Westminster on the 15 November 2007.

Contact between the Whitehall Department and the relevant NI Department is continuous throughout the entire process of obtaining Legislative Consent. Even after Legislative Consent has been granted by the Assembly, Departments in the UK and NI should be in close contact throughout the passage of the Bill in Westminster. This process is vital as any significant changes to the devolved provisions which may have occurred to a Bill in Westminster, can be relayed to the relevant NI Minister as soon as possible. He/she can then inform the relevant Committee of any significant changes to the devolved provisions of the Bill. This is important as a second Legislative Consent Motion may be required if the provisions to which consent was given in the first place have changed.

There have been two occasions in the NI Assembly were changes to the devolved provisions in a UK Bill at Westminster, has required the NI Minister to inform the relevant NI Committee. The two Bills in question are the Climate Change Bill and the Pensions Bill. In the first instance a Legislative Consent Motion regarding the Climate Change Bill, was supported by the Assembly on the 10 December 2007. However amendments to the original Bill were subsequently made in Westminster, which changed the policy affecting NI. Through subsequent correspondence with the relevant UK Department, the NI Minister for Environment was able to inform the Environment Committee of the changes to the Bill at an early stage. However, it was subsequently agreed by the Committee that a second Legislative Consent Motion was not necessary as the first Motion was perceived to be broad enough to encompass the amendments to the UK Bill.[7]

In relation to the second occasion, a Legislative Consent Motion regarding the Pensions Bill was originally supported in the Assembly on the 26 February 2008. Within this Bill certain chapters applied to NI with the specific subject areas being mentioned in the Legislative Consent Motion. Amendments were subsequently made to the Pensions Bill during its passage through Westminster. These amendments included new subject areas not mentioned in the original Legislative Consent Motion. The Social Development Committee agreed that a further legislative Consent Motion would have to be put before the Assembly which outlined the new areas added to the Bill through the amendments. This subsequent Motion was agreed by the Assembly on the 1 July 2008.[8]

Part Two: Scotland

Origins and Development of the Sewel Convention

What has become known as the Sewel Convention originated with remarks made by Lord Sewel, the junior Scottish Office Minister responsible for steering the Scotland Bill through the House of Lords, in July 1998.  Referring to the provision in the Bill that asserts Westminster’s continued right to legislate for Scotland on devolved as well as reserved matters, he said,

“We [the Government] envisage that there could be instances where it would be more convenient for legislation on devolved matters to be passed by the United Kingdom Parliament.  However,  … we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament."[9]

From the outset, this was to be a political convention rather than part of the legal foundations established by the Act.  It was to be invoked primarily in relation to legislation on devolved matters, but used only with the Parliament’s consent.  The details of how and when this consent was to be obtained were not elaborated at the time.

In practice, the convention was developed almost entirely at governmental level. It took formal shape in the Memorandum of Understanding (MOU) between the UK Government and the devolved administrations i.e. the Scottish Executive, the Welsh Assembly Cabinet and the Northern Ireland Executive. The MOU has been supplemented by a series of “Devolution Guidance Notes", which are intended to be advisory but not legally binding on the parties of the MOU.[10]

The Guidance Note outlines how obtaining consent from the Scottish Parliament is only needed for legislative provisions which are specifically for devolved purposes, or which alter the legislative competence of the Parliament or the executive competence of the Scottish Ministers. These legislative provisions are also known as “Category III" provisions. Category I and II provisions do not need Sewel consent. This is because they either:[11]

(i) do not apply to Scotland at all; or which apply to Scotland but relate to reserved matters and do not alter Scottish law on non-reserved matters or,

(ii) the provisions do apply to Scotland and relate to reserved matters, but also contains provisions which make incidental or consequential changes to Scottish law on non-reserved matters.

In other words, only Bills with provisions in Category III are subject to the convention requiring the consent of the Scottish Parliament. However, the MOU outlines how the UK Departments should consult the Scottish Executive on changes in devolved areas of law which are incidental to provisions made for reserved purposes. In practice therefore, under the Convention if the UK Government and the Scottish Executive agree that it is appropriate to include in a Westminster Bill provisions affecting devolved matters, the Executive will invite the Parliament to give consent to those provisions being dealt with by Westminster. [12]

This involves the Executive providing a memorandum about the UK Bill, which is usually considered by a relevant Scottish Parliament Committee. The Committee will then consider and report on the Legislative Consent Memorandum. The Executive also lodges a Sewel motion which the Parliament as a whole is invited to agree upon before the Bill reaches its final amending stage at Westminster, in the House it was introduced. However, a Sewel motion is not normally lodged until after the publication of the Committee’s report. If the motion is agreed to by the Parliament, the resulting Sewel resolution gives Westminster the formal go-ahead that the convention requires.[13]

Practices relating to the Sewel convention have gradually evolved and developed over the past number of years. For example, initially Sewel scrutiny was limited to debates in the Chamber. However, it then became more common for the main scrutiny to take place in a Committee, with a further Chamber debate (in addition to the moving and disposing of the motion) only if this was recommended by the Committee. In January 2003, practices developed further with the Scottish Executive publishing a memorandum which included some proposals for reform in relation to the Sewel convention. The most significant of these was to push back the normal deadline for obtaining the Parliament’s consent from Second Reading to the last amending stage in the first House i.e. either Report Stage in the Commons or Third Reading in the Lords. This was intended to give the Parliament and Committees in particular more time for scrutiny purposes.

Further developments occurred with regards to practices surrounding the Sewel convention with the Scottish Executive preparing a supplementary memorandum in August 2003. This confirmed that the change proposed in the January memorandum in relation to the deadline for obtaining consent, had since been adopted. The August memorandum also noted that towards the end of Session 1 (1999-2003) it had become common practice that very few Sewel memoranda were being referred to Committees at all, and proposed a return to the earlier practice of routine Committee consideration. In September 2003 it was subsequently stated by the Presiding Officer that the continued approach would be for all Sewel motions to be considered in Committee and for time to be allocated for a short debate in the Chamber if there were concerns that the Committee felt had not been satisfactorily addressed.

In 2005, the Procedures Committee of the Scottish Parliament undertook an inquiry into the use of Sewel motions and heard evidence from a number of individuals including Lord Sewel. Following the review, the motions were re-titled Legislative Consent Motions and the procedures were enshrined in the Scottish Parliaments Standing Orders.[14]

Criticisms and Limitations of the Convention

The frequency of use of Sewel motions has been one of the main targets of criticism regardless of its original intent. In Session 2 (May 2003- April 2007) 38 Sewel motions /legislative consent motions were passed.[15] When Lord Sewel set out the convention it was a statement intended to show that the UK Parliament would refrain, except on a consensual basis, from using its legal power to legislate in devolved matters. It is argued by many that greater emphasis has now been put on the exception rather than the restraint.[16]

A related perception to the criticism above which has been highlighted, is that powers are being “handed-back" to Westminster, and that the use of the Sewel process is a kind of “counter-devolution". In some instances, the criticism has been that the convention has been used inappropriately, to impose a general UK solution on a subject where a distinctively Scottish approach would have been preferable by some.

Part Three: Wales

Standing Order 26[17] outlines the procedures of the National Assembly for Wales with regards to consent in relation to UK Parliament Bills affecting Wales. This Standing Order states that a member of the Government is required to lay a Legislative Consent Memorandum[18] in relation to:

(i) Any UK Government Bill that is a relevant Bill[19] on its introduction to the first House, normally no later than 2 weeks after introduction;

(ii) Any UK Private Member’s Bill that was a relevant Bill on introduction and remains a relevant Bill after the first amending stage in the House in which it was introduced, normally no later than 2 weeks after it completes that stage;

(iii) Any Bill introduced into the UK Parliament that, by virtue of amendments agreed to making relevant provision for the first time or beyond the limits of any consent previously given by the Assembly. This memorandum must be laid no later than 2 weeks after the amendments are tabled or agreed to.

Standing Order 26 also states when a Legislative Consent Memorandum is laid, the government must at the same time table a Legislative Consent Motion. This motion seeks the Assembly’s agreement to the inclusion of a relevant provision in a relevant Bill.

To date, the National Assembly for Wales has only dealt with two Legislative Consent Motions with only 15 minutes being allocated for each debate. Furthermore, no Committee of the National Assembly for Wales has undertaken any scrutiny of the relevant UK Bill. With regards to amendments to such motions, it is the Presiding Officer’s view that amendments may be tabled provided that if they were agreed they would not cast into doubt the decision of the Assembly in relation to the main question. The National Assembly for Wales has had limited experience with regards to Legislative Consent and are therefore still developing practice.[20]

Part Four: Potential Issues for Consideration

When Should the Assembly’s Consent be Sought

A number of NI Committee Chairpersons have highlighted the importance of timing with regards to Legislative Consent Motions. This is due to concerns over the issues of significant changes being made to specific provisions of a Bill during its passage through Westminster. It could be argued that the timing of a motion is crucial to ensure any significant changes to provisions in a UK Bill are taken into account during a debate on the motion. Therefore the Committee may wish to take into account the timing of a Legislative Consent Motion, taking into consideration the potential change in provisions which may occur during its passage through Westminster.

Role of Committees

It is current practice for the relevant NI Minister who is responsible for obtaining the Assembly’s consent, to provide the relevant NI Committee with a Legislative Consent Memoranda. These documents should explain the need for and the background to the legislative proposals. A copy of the Westminster Bill specifying the NI provisions should also be provided. In practice, at present in the NI Assembly a report of the Committee’s considerations is given verbally by the Chair of the Committee in responding to the Minister during the motion debate itself. With regards to this issue, the Procedures Committee may wish to consider if it would be appropriate for the relevant NI Committee to report in writing to the Assembly before the Legislative Consent Motion is taken. It is worth noting that the Legislative Programme Secretariat of the Office of the First Minister and Deputy First Minister have indicated that it would not be appropriate for the procedures in the NI Assembly to require a Committee to report in writing. The Procedures Committee may wish to clarify the reasoning for this view at the evidence stage of the inquiry.

[1] Memorandum of Understanding between the UK Government, the Scottish Ministers, the Cabinet of the National Assembly for Wales and the Northern Ireland Executive Committee, 2001.
http://www.dca.gov.uk/constitution/devolution/pubs/odpm_dev_600629.pdf

[2] A Legislative Consent Motion gives the devolved legislature the chance to agree collectively to the UK Parliament legislating on a devolved issue.

[3] Cabinet Office Explanatory Notes, Devolution – Scotland, Wales and Northern Ireland
http://www.cabinetoffice.gov.uk/secretariats/economic_and_domestic/legislative_programme/guide_html/devolution.aspx

[4] Outline of Assembly Procedures on Legislative Consent Motions, provided by the Legislative Programme Secretariat of the Office of the First Minister and Deputy First Minister.

[5] Ibid

[6] Ibid

[7] Information gained through correspondence with the Legislative programme Secretariat of the Office of the First Minister and the Deputy First Minister.

[8] Ibid

[9] House of Lords Debate, 21 July 1998, col 791. Cited in the Scottish Parliament Procedures Committee’s Report on the Sewel Convention, 2005
http://www.scottish.parliament.uk/business/committees/procedures/reports-05/prr05-07-vol01.htm#_ftn1

[10] Memorandum of Understanding, 2001
http://www.justice.gov.uk/docs/odpm-dev-600629.pdf

[11] Devolution Note 10 – Post Devolution Primary Legislation affecting Scotland
http://www.dca.gov.uk/constitution/devolution/guidance/dgn10.pdf

[12] There is no legal requirement for such consent, given that section 28(7) of the Scotland Act gives the UK Parliament a continued and unqualified right to legislate for Scotland on devolved matters. The convention is an important political mechanism for ensuring that the UK Government does not legislate in devolved areas against the wishes of the Scottish Parliament.

[13] Standing Orders of the Scottish Parliament, Chapter 9B
http://www.scottish.parliament.uk/business/so/sto-4.htm#9b

[14] Scottish Procedures Committee Report on the Sewel Convention, 2005
http://www.scottish.parliament.uk/business/committees/procedures/reports-05/prr05-07-vol01.htm

[15] The Scottish Parliament website
http://www.scottish.parliament.uk/business/legConMem/LCM-Stats.htm

[16] House of Commons Factsheet on The Sewel Convention, November 2005 pg 10.

[17] Standing Orders of the National assembly for Wales
http://www.assemblywales.org/bus-docs-third-standingorders.pdf

[18] A legislative memorandum must summarise the policy objectives of the Bill, specify the extent to which the Bill makes relevant provision and explain whether it is considered appropriate for that provision to be made.

[19] A ‘relevant Bill’ means a Bill under consideration in the UK Parliament which makes provision (“relevant provision") in relation to Wales, for any purpose within the legislative competence of the Assembly; or which has a negative impact on the legislative competence of the Assembly.

[20] Information gained through correspondence with the Clerk to the Procedures Committee in the National Assembly for Wales.

Appendix 5

Other Papers

Westminster Bills and Devolved Matters

1. Normally where new primary legislation is required in the devolved field, the Minister responsible for the area concerned, after consultation with the Assembly Committee and agreement from the Executive, will bring forward a Bill to the Assembly. As part of this process, the Minister will consider such issues as the equality and other impacts of the proposed legislation, whether it engages any articles of the ECHR, the financial implications and responses to public consultation, where appropriate, etc. The limitations on Assembly Bills and the legislative competence of the Assembly are set out in sections 5 to 8 of the Northern Ireland Act 1998.

2. In the main, Assembly Bills deal with transferred (devolved) matters since it is these areas in which Executive Ministers have the power to exercise responsibility. A transferred matter is any matter which is not a reserved or excepted matter as defined in schedules 2 and 3 of the NI Act 1998. However, with the Secretary of State’s consent, Bills may also contain provisions relating to reserved matters or provisions which deal with an excepted matter provided they are ancillary to transferred or reserved provisions.

3. This does not prevent the UK Parliament legislating on areas within the competence of the Assembly, although an Act of the Assembly may modify any provision made by or under an Act of Parliament in so far as is part of the law of Northern Ireland. A Department may therefore receive an approach from its Whitehall counterparts about the possibility of specific Northern Ireland provisions dealing with a transferred matter being included in a proposed Westminster Bill, or the Bill extending to Northern Ireland in the same way as to the rest of the UK in an area which is devolved. In considering such an approach, the Department should consider a number of issues, including:

a. Is the policy appropriate for Northern Ireland?

b. To what extent has the normal policy development process been undertaken in relation to the policy in respect of NI, for example, public consultation, statutory obligations arising from section 75 of the NI Act 1998, and other impact assessments, etc?

c. How does the issue stand in relation to other competing policy development priorities and what are the resource implications for taking it forward at this point in time?

4. If it is felt that it is appropriate to develop the policy and legislation in the same timescale as the Whitehall Department is proposing for its Bill, the Department nevertheless needs to consider whether it would be preferable to do this by the normal means of an Assembly Bill. Besides being a key element of the devolution settlement, the ability of the Assembly to enact primary legislation by means of an Assembly Bill ensures that the Department has the maximum degree of control over the detailed content of an Executive Bill and its timetabling up to Introduction. It also allows for the full exercise of the scrutiny role by the Assembly Committee and of the powers of the Assembly to amend, pass or reject the Bill.

5. However, there will be occasions when legislating on transferred matters at Westminster can be justified, for example:

a. the Bill establishes a public body which will operate on a UK-wide basis, where it would be inappropriate to have a separate body dealing solely with Northern Ireland because of economies of scale, or limits on the availability of expertise to fill the membership of such a body;

b. the subject of the Bill covers excepted, reserved and transferred matters and it would be excessively complex to extricate the transferred provisions and legislate for them separately by Assembly Bill;

c. the existing body of legislation although in the transferred field already operates on a UK-wide basis and it would for that reason be problematic to legislate for Northern Ireland separately; or

d. the provisions are relatively minor and technical and it would be more efficient to deal with them in the ready-made vehicle of a Westminster Bill than to promote a specific Assembly Bill.

6. Where it is concluded that using the proposed Westminster Bill is the most appropriate way to proceed, Departments should nevertheless endeavour to compensate for the legislation not going through the Assembly process by ensuring the normal policy development procedural requirements are adhered to where possible (public consultation where appropriate, assessment of equality and other impacts, etc), the Assembly Committee is fully consulted and the agreement of the Executive is secured. Even where legislation on a transferred matter is contained in an Act of the UK Parliament, policy responsibility in relation to Northern Ireland remains with the relevant Northern Ireland Department.

7. Departments should also be aware that the UK Government will not normally include provisions dealing with transferred matters in a Westminster Bill unless the Executive has agreed to this before clearance is sought to the Bill’s Introduction and that such provisions will only be retained following Introduction provided the Assembly has agreed to this by the passing of a Legislative Consent Motion in plenary session. This convention also applies to provisions which alter the legislative competence of the Northern Ireland Assembly or the executive functions of Northern Ireland Minsters or Departments. It arises from the Memorandum of Understanding between the UK Government and the devolved administrations (Cm 5240, December 2001) which states, at paragraph 13:

“The United Kingdom Parliament retains authority to legislate on any issue, whether devolved or not. It is ultimately for Parliament to decide what use to make of that power. However, the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government."

8. Detailed guidance for Whitehall Departments on the implementation of this convention is contained in Devolution Guidance Note 8 “Post-devolution primary legislation affecting Northern Ireland". Northern Ireland Departments should ensure that they are familiar with the requirements which this places on their Whitehall counterparts as well as with the Government Bill process generally at Westminster. Those unfamiliar with the Westminster Bill process may find House of Commons Factsheet L1 a useful starting point. Detailed guidance on all aspects of a Westminster Bill’s preparation is contained in the Cabinet Office’s Guide to Legislative Procedure.

9. The attached Annex sets out in more detail the recommended procedural steps involved in legislating by Westminster Bill on transferred matters to ensure that the requirements of the various interested parties are met. It cannot, however, take account of all the circumstances that might arise in the process and Departments will need to adapt the procedure to suit each individual case.

Subordinate Legislation

10. The convention does not apply to subordinate legislation to be made by a Whitehall Department which contains devolved provisions. A Legislative Consent Motion is not required in such circumstances since the UK Parliament is not legislating on the matter instead of the Assembly, rather it is the Whitehall Department making the legislation instead of the Northern Ireland Department. Nevertheless, the principles outlined above for primary legislation and the procedure in the Annex (except those relating to the Legislative Consent Motion) should be adapted to ensure compliance with normal policy development requirements, consultation with the Assembly Committee and agreement by the Executive, where appropriate.

Further Guidance

11. If Departments have any queries or wish to discuss any aspect of the process further, they should contact Jim Hamilton on extension 22440 or Julie Gillespie on 22668.

Legislative Programme Secretariat
OFMDFM
November 2007

Annex

Legislating on Devolved matters by Government Bill at Westminster

Step	Description	Comment
1.	Contact made with Department at official level by Whitehall Department on possibility and implications of proposed Westminster Bill legislating in the devolved field. This can happen in two main ways, (a) where the provisions of a Bill are to apply equally to NI as to GB, or (b) where certain provisions extend only to NI. The latter situation is referred to throughout the rest of this note although the guidance applies equally to the former.	It is important to establish a common position at the outset on whether the matters being legislated for in relation to NI are transferred or reserved/excepted. In cases of difficulty, Departments should consult the Legislative Programme Secretariat (LPS) which will discuss the matter with NIO if necessary.
2.	Department consults the Office of the Legislative Counsel (OLC) on technical implications of extension of provisions to NI and LPS on programme implications, considers the adequacy of consultation and impact assessments on policy aspects in relation to NI and whether any shortfall can be remedied within the timescale for the Bill and advises Whitehall Department of the position. The Department should also consider what Ministerial involvement might be appropriate at this stage.	Advice can be sought from OLC on whether the potential NI provisions in the Bill relate to substantive transferred matters or are transferred, but only consequential or incidental to reserved or excepted matters.
3.	If appropriate, Whitehall Minister writes to the relevant Northern Ireland Minister offering to carry NI devolved provisions in Westminster Bill.
4.	If appropriate, Minister agrees in principle, subject to consultation with Assembly Committee and agreement of Executive.	It is, of course, open to the Minister to decline this offer from the Whitehall Minister and consider instead taking a Bill through the Assembly, if appropriate.
5.	Until the Westminster Bill has been enacted (or the devolved provisions removed) officials should maintain a pro-active stance with Whitehall counterparts to ensure that the devolved provisions take full account of NI circumstances and the Department’s policy position. As part of this process, the Department should aim to comply with the same policy development requirements which they would meet if the Bill was being taken through the Assembly, including consultation, impact assessments and consideration of the financial implications and budgetary cover. The Whitehall Department may carry out or co-ordinate some or all of this work on a UK-wide basis. The Department may also be required to contribute to Instructions for Parliamentary Counsel for the devolved provisions in the Bill and to supply part inputs to the very substantial briefing required for UK Cabinet approval and for the relevant Whitehall Minister taking the Bill through its various stages in each House at Westminster.	Where legal as opposed to policy instructions are required by the Whitehall Department to enable the devolved provisions of the Bill to be drafted, these must be prepared on the advice of the Department by lawyers in the Departmental Solicitor’s Office (DSO), as Parliamentary Counsel in Whitehall will not accept such instructions directly from administrators. OLC should be kept informed of developments in this area as Parliamentary Counsel may well seek advice from OLC on the NI provisions and the Bill’s interaction with the NI statute book. It is important to realise that the Whitehall Bill team will often be working to very tight deadlines, imposed by the overall legislative programme and Parliamentary procedures, and therefore require timely contributions from the Department to ensure these deadlines are met.
6.	Minister consults Assembly Committee on policy content of devolved provisions and on the principle of these provisions being carried in Westminster Bill.	This should be done by means of a memorandum explaining the need for, and background to, the legislative proposals, and, if necessary, an oral briefing by the Minister or Departmental officials. A response from the Committee should be sought in time for this to be considered by the Minister before a final decision is taken on inclusion of NI provisions in Bill. The Bill (unless it has been published in draft) is not available for consideration by the Committee at this stage as it will not have been made available to the UK Parliament and in any case will probably still be in the course of drafting. There may be more than one opportunity to consult the Committee during the development of the policy content of the Bill and the briefing material provided should be tailored according to the stage reached. If, following consultation with the Committee, the Minister decides that inclusion of the devolved provisions in the Bill is no longer appropriate, the Whitehall Minister should be informed accordingly.
7.	Minister seeks agreement from the Executive to policy content of devolved provisions, to these provisions being carried in Westminster Bill and to consent by the Assembly being sought. Where there is time, and particularly where the matter is cross-cutting or controversial, the Minister may wish to seek comments from Ministerial colleagues or propose a discussion at an Executive meeting before tabling a paper seeking a decision on the matter. In such cases the Minister may wish to take initial views from Ministerial colleagues before approaching the Assembly Committee (Step 6).	This agreement needs to be obtained before the Bill goes to the UK Cabinet’s LP Committee for approval to introduction. Agreement will normally be on the basis of a policy memorandum rather than the Bill itself (a final version of which is unlikely to available at this stage). The Executive should be made aware of the Assembly Committee’s views as part of this process.
8.	Following consultation with Committee and consideration by the Executive, Minister confirms Executive agreement to devolved provisions being carried in Westminster Bill to Whitehall Minister.	Steps 3-7 may need to be carried out in relation to a draft Bill, where it is published for consultation, as well as the Bill itself. Where agreement of the Executive is not forthcoming, Minister will ask Whitehall Minister to remove devolved provisions from the Bill prior to Introduction.
9.	Department drafts Legislative Consent Motion (LCM) and sends to LPS.
10.	LPS consults OLC and the Business Office on the terms of the LCM and provides Department with advice.
11.	Bill introduced at Westminster.	As soon as the Bill is published, steps 12 (where appropriate), 13 and 14 should be carried out simultaneously, ensuring in particular that the Assembly Committee has access to a copy of the Bill at the earliest opportunity.
12.	Exceptionally the NI Minister may wish to make a statement to the Assembly on the devolved provisions in the Westminster Bill in which case the agreement of the Executive should be obtained at Step 7.	This might be done, for example, where the matter is politically contentious to assure the Assembly that its consent will be sought in due course.
13.	Minister writes to Ministerial colleagues informing them of the Westminster Bill’s introduction, highlighting the devolved provisions, providing an explanation of these provisions as appropriate, and giving notice of the intention to lay the necessary Legislative Consent Motion seeking the Assembly’s consent to the continued inclusion of the devolved provisions in the Bill.	Where the policy content of the devolved provisions has changed since the previous agreement of the Executive, or significant additional detail has emerged in the final stages of drafting the Bill, it may be necessary for the Minister to seek a revised approval from the Executive and to consult further with the Assembly Committee.
14.	Minister writes to the Committee informing them of the Bill’s introduction, highlighting the devolved provisions, providing an explanation of these provisions and any other background as necessary, enclosing a draft of the proposed Legislative Consent Motion and giving an indication of the timescale for a decision by the Assembly on whether or not it consents to the continued inclusion of devolved provisions in the Bill.	So as not to disrupt the timetable for the Bill at Westminster, the Whitehall Departments needs a decision by the Assembly before the Bill enters its final amending stage in the First House (Report stage in the Commons and Third Reading in the Lords).
15.	If requested, the Minster or Departmental officials brief the Committee on the devolved provisions of the Bill at Introduction providing members with an opportunity to explore fully the details of the legislation.	Note that the devolved provisions in the Bill may be amended during its passage through Parliament.
16.	The Committee carries out whatever other examination of the devolved provisions it sees fit and, where it decides to do so, makes a formal response to the Minister.
17.	Following consideration of the Committee’s response, where appropriate, Department asks Assembly Section, OFMDFM, to secure Assembly debating time for the LCM.
18.	Minister tables LCM at the Business Office.
19.	The Business Committee determines the date, time and duration of the plenary debate on the LCM.
20.	Motion placed on Order Paper and in advance of debate Minister provides members with memorandum setting out background to the issue.
21.	Minister moves the LCM in plenary, normally in a short speech which rehearses briefly the background to the devolved provisions and the case for them to be taken forward by Westminster Bill. Minister also winds up the debate responding to any points made by members.	As the Bill is being taken forward by another legislature, the Assembly does not have the degree of control over devolved provisions had an Assembly Bill on the subject been brought before it. The question for the Assembly to decide therefore is whether it is content in principle for Westminster to legislate in the area concerned as opposed to agreeing the specific devolved provisions in the current version of the Bill with or without qualification.
22.	Minister confirms the Assembly’s decision to Whitehall Minister and this is taken into account in the Bill’s subsequent passage through Westminster.	Where the Assembly approves the LCM, this does not prevent it asking the Minister to seek amendments to NI provisions, or to the Minister, subject to agreement by the Executive, undertaking to do so. In these circumstances it would be a matter for the Whitehall Minister, taking account of the implications for the Bill as a whole, to decide whether it is possible to table the requested amendments and for Parliament to decide whether to accept them. Where the Assembly does not approve the LCM, the Whitehall Minister will arrange to table amendments to the Bill to remove the devolved provisions.
23.	Where Assembly agrees to continued inclusion of devolved provisions, Whitehall Minister consults Minister on any proposed Government, or Government–supported, substantive amendments involving devolved provisions and keeps Minister informed of any other developments on devolved provisions during the Westminster Bill’s passage.
24.	Minister informs Assembly Committee and Ministerial colleagues of any substantive changes to the devolved provisions in the Westminster Bill from those in the version used to obtain consent.	It may be that a decision to agree to such changes will require referral to the Executive, consultation with the Assembly Committee and consent of the Assembly.
25.	Following agreement at the Assembly, the Clerk to the Northern Ireland Assembly writes to the Clerk of the House of Commons and Clerk of the Parliaments notifying them that the Assembly has agreed.

Notes

I. Steps 1-24 will need to be adapted for cases where:

a. it is not possible to consult the Committee or obtain Executive approval prior to the introduction of the Westminster Bill;

b. it is proposed to add devolved provisions by means of amendments following a Westminster Bill’s introduction where the Bill did not previously contain devolved provisions; or

c. the UK Government proposes to support a Private Member’s Bill containing devolved provisions.

II. Where a Westminster Bill contains provisions dealing with transferred matters which are the responsibility of more than one NI Department, the Departments should co-operate to try to avoid the need for more than one Legislative Consent Motion. In normal circumstances each Department should liaise with its own Assembly Committee separately on the matters within their responsibility but, ideally, the Department with the main provisions should co-ordinate any papers to go to the Executive, including Ministerial colleagues letters for information purposes, pull together the drafting of the LCM, handle the laying of the LCM and take the lead in the plenary debate on the LCM.

III. A Legislative Consent Motion is not required in relation to Whitehall subordinate legislation containing devolved provisions. However, steps 1-8 of the above process are also relevant to such cases where references to the Westminster Bill should be read as the Whitehall Statutory Instrument, except that legal advice should be sought from the Departmental Solicitor’s Office rather than OLC and reference to the Executive should only be made where the decision falls within paragraph 2.4 of the Ministerial Code.

IV. A Legislative Consent Motion is not required following the publication by a Whitehall Department of a draft Westminster Bill, containing devolved provisions, for public consultation and pre-legislative scrutiny. However, Departments should normally consult the Assembly Committee on, and obtain the agreement of the Executive to, inclusion of such provisions before publication.

V. The steps in the table should also be followed where provisions in a Westminster Bill, although not devolved, alter the legislative competence of the Northern Ireland Assembly or the executive functions of Northern Ireland Ministers or departments.

Devolution Guidance Notice 8:
Post-Devolution Legislation Affecting
Northern Ireland

Summary

• The Memorandum of Understanding with the devolved administrations states that:

“The UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government."

• The convention applies when legislation makes provision specifically for a transferred (i.e. devolved) purpose. It does not apply when legislation deals with transferred matters only incidentally to, or consequentially upon, provision made in relation to a reserved or excepted matter, although it is good practice to consult the Northern Ireland Devolved Administration and the Northern Ireland Office in these circumstances.
• The same procedures should be followed for Private Members’ Bills to be supported by the Government.
• The convention relates to Bills before Parliament, but departments should approach the Devolved Administration on the same basis for Bills being published in draft, and for subordinate legislation which extends to NI in the transferred field, even though (in both cases) there is no formal requirement for agreement by the Northern Ireland Assembly.

Introduction

This note sets out guidance for UK Government departments on handling legislation affecting Northern Ireland. The Memorandum of Understanding with the devolved administrations states that:

“The UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government". (December 2001, Cm 5240, paragraph 13)

The convention applies when primary legislation makes provision specifically for a transferred (i.e. devolved) purpose; it does not apply when such legislation deals with transferred matters only incidentally to, or consequentially upon, provision made in relation to a reserved or excepted matter, nor does is apply to subordinate legislation. This note sets out how Legislative Programme Committee expects departments to give effect to this policy intention, while ensuring the smooth management of the Government’s legislative programme. The note does not extend to legislation which deals with emergencies or is otherwise exceptional.

General

2. In general:

i. the Memorandum of Understanding indicates that there will be consultation with the Northern Ireland Devolved Administration on policy proposals affecting devolved matters in Northern Ireland, whether or not they involve legislative change. Such consultation will normally take place on a bilateral basis between the relevant lead Whitehall department and its NI counterpart(s)

ii. the convention refers to “the agreement of the devolved legislature", adding that “the devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government." Therefore, UK Ministers should approach the Northern Ireland Administration. The approach should be made to the Northern Ireland Minister with lead responsibility for the policy area as it will be their responsibility to indicate the view of the Northern Ireland Assembly and to take whatever steps are appropriate to ascertain that view, including, obtaining the prior agreement of the Northern Ireland Executive Committee to the proposed legislation and consulting with the relevant statutory Assembly Departmental Committee. However the letter should be copied to both the First Minister and deputy First Minister (who hold the offices jointly) given their role in co-ordinating the work of the Executive Committee (unless the matter falls within the departmental responsibilities of the Office of the First Minister and deputy First Minister, in which case the letter should, of course, be put directly to FM and dFM). It should also be copied to the Secretary of State for Northern Ireland.

iii. Whether agreement is needed depends on the purpose of the legislation. Agreement need be obtained only for legislative provisions which are specifically for transferred purposes, although departments should consult the relevant NI department, copied to the Office of the First Minister and deputy First Minister and the Northern Ireland Office, on provisions made for reserved or excepted purposes as these could have implications for transferred areas of responsibility;

iv. Always consult your Legal Advisers and the Northern Ireland Administration at an early stage in developing proposals for legislation if there is any doubt as to whether a proposal may trespass on devolved matters. Do not assume that the Northern Ireland Administration will necessarily share your view about where the boundaries lie between non-devolved and devolved matters. The Northern Ireland Office can also provide advice on these matters and should be copied in on any correspondence.

v. K departments considering legislation on reserved matters should consult the Northern Ireland Office and the Northern Ireland Administration to determine whether this is best done at Westminster or by means of parallel Assembly legislation (which will require the Secretary of State’s consent). This is particularly important if the reserved matters concerned are likely to become transferred (i.e. devolved) responsibilities in the near future;

vi. UK departments considering legislation altering the legislativecompetence of the Assembly (including amendments toSchedules 2 and 3 to the Northern Ireland Act 1998) shouldconsult the Northern Ireland Office in the first instance; and

vii. the relevant lead NI department and the Northern Ireland Office will ensure relevant UK departments are consulted about Assembly legislation which deals with reserved matters or deals, in an ancillary capacity, with excepted matters. Departments bringing legislative proposals to LP Committee will be expected to address the need for consultation or consent as described in the following paragraphs. They should ensure that the Northern Ireland Administration – and, as appropriate, the Northern Ireland Office – is engaged from an early stage, so that any potential areas of difficulty are identified and addressed, and should allow sufficient time for this when planning their Bills.

Long term legislative plans

4. Any bid to LP Committee for the inclusion of a particular Bill in afuture legislative programme should state clearly that the proposed Bill, as applicable:

i. either does not apply to Northern Ireland or only has provisions which deal with reserved or excepted matters that do not impinge on transferred matters;

ii. has provisions which apply to Northern Ireland which deal with reserved or excepted matters but which will impinge on transferred matters (i.e. are for non-devolved purposes, such as provisions about human genetics which will require action from health service organisations); or

iii. contains provisions applying to Northern Ireland and which deal with transferred matters (but not reserved or excepted matters), or which alter the legislative competence of the Northern Ireland Assembly or the executive functions of Northern Ireland Ministers or departments.

5. Only Bills with provisions in category III are subject to the convention on seeking the agreement of the Northern Ireland Assembly. Although the main thrust of a Bill may be directed at reserved or excepted matters, it may nevertheless contain some provisions in this category. At LP, the responsible Minister should say whether the Northern Ireland Administration has agreed to seek the consent of the Northern Ireland Assembly to including any such provisions in category III in a UK Bill.

6. Bills in category I or in category II do not require the agreement of the Northern Ireland Assembly. In some Category II cases, however, the effects on transferred matters will be significant. LP will expect departments to have plans for consulting the Northern Ireland Administration in accordance with the Memorandum of Understanding and the relevant bilateral concordats. Such consultation may be undertaken in confidence, and the Northern Ireland Administration will respect any such confidence.

7. The Secretary of State for Northern Ireland has a role in respect of a number of reserved and excepted matters. Therefore the Northern Ireland Office should always be consulted at an early stage when developing any legislative proposals which could be relevant to Northern Ireland.

Bills ready for introduction

8. The essential requirement is that by the time proposals come to LP Committee for introduction, devolution-related issues have been substantively resolved. Papers for LP are required to contain a statement to that effect. Such papers should also identify the clauses which fall into each of the categories above.

9. If a Bill has provisions in category II which would impinge on transferred matters, the paper should indicate whether agreement has been reached with the Northern Ireland Administration on the treatment of such clauses.

10. If a Bill has provisions in category III:

i. where the provisions are of major significance in the Bill, there should have been prior consultation and agreement with the Northern Ireland Administration on these, LP expects that, by the time that the Committee considers whether the Bill is ready for introduction, agreement has been reached with the Northern Ireland Administration to seek the consent of the Northern Ireland Assembly; and

ii. LP will also expect that agreement is reached for the view of the Northern Ireland Assembly to the inclusion of any such provisions to be expressed before the final amending stage in the first House in the UK Parliament.

11. If a Bill has provisions in category III which will change the legislative competence of the Northern Ireland Assembly, the paper for LP should identify the policy clearance for them, bearing in mind that such changes in legislative competence if made by Order in Council would require a prior resolution of the Northern Ireland Assembly (Northern Ireland Act 1998, sections 4(3) and 6(4)).

12. Finally, LP papers at this stage should say whether there are anypotential amendments where the agreement of the Northern Ireland Assembly might have to be sought or which might prove controversial there.

Draft Bills

13. The convention relates to Bills before Parliament, but departments should approach the Northern Ireland Administration and the Northern Ireland Office on the same basis for Bills being published in draft, even though there is no formal requirement to do so.

Private Members’ Bills

14. Essentially the same procedures should be followed for PrivateMembers’ Bills to be supported by the Government, with some minor modifications to reflect the fact that the procedures for Private Members’ Bills are less certain than for Government Bills.

15. Departments should consult the Northern Ireland Administration at an early stage on any Private Member’s Bill which they are minded to support and which contain provisions in category III. The aim should be for consent to be obtained by the time of Commons Committee Stage. Before then, the Government may need to reserve its position pending agreement, particularly if the Bill was introduced in the House of Lords. Departments seeking clearance to oppose a Private Members’ Bill in category III on policy grounds need only consult the Northern Ireland Administration if the Bill has a substantial effect on transferred matters.

16. It is possible that Private Members will claim to have themselves obtained the agreement of the Northern Ireland Assembly for such a Bill and rely on this as an argument in favour of the Bill. Even if there are not UK policy grounds for opposing such a Bill, the Government will resist the provisions on devolved matters if the Northern Ireland lead Minister (after having carried out any necessary consultations, including referring the matter to the Executive Committee, if appropriate) indicates that the provisions should not be extended to Northern Ireland, and will move any necessary amendments at Commons Committee or Report Stage.

17. In line with the Memorandum of Understanding and concordats, there should also be consultation with the Northern Ireland Administration where a department proposes to support a Private Members’ Bill with provisions in category II which would impinge on devolved matters.

During the passage of legislation

18. During the passage of legislation, departments should approachthe lead NI department, copied to the Office of the First Minister and deputy First Minister and the Northern Ireland Office, about Government amendments, (or any other amendments which the Government is minded to accept) which change or introduce provisions requiring the agreement of the Northern Ireland Administration. No consultation is required for other amendments tabled.

19. The Northern Ireland Administration will deal promptly with issues which arise during the passage of a Bill, and recognise the pressures of legislative timetables (e.g. when the Government is forced to consider accepting amendments at short notice). The last opportunity for amendment is at Third Reading in the Lords or Report Stage in the Commons, so the absence of agreement is not a bar to proceeding with the Bill before that point. Nevertheless, in the interests of orderly management of legislation, such issues should be sorted out well before that stage wherever possible.

Legislating by Order in Council

20. Powers remain under Section 85 of the Northern Ireland Act 1998 to use Orders in Council to make provision about matters in paragraphs 9-17 of Schedule 3 of that Act. Departments should note that such Orders in Council must first have been laid before Parliament in draft for 60 days and referred to the Northern Ireland Assembly.

21. In case of doubt or where departments require further assistance they should contact Devolution and Legislation Division (NIO) – [Legislation & Parliamentary Unit – John Todd 0207 210 6575].

Report on Visit to Scotland

Committee on procedures
room 430
parliament buildings

Tel: +44 (0) 28 90521475
fax: +44 (0) 28 90521882
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From: Stella McArdle
To: Members, Committee on Procedures
Date:
Subject: Visit to Scottish Parliament regarding Legislative Consent Motions (LCMs)

1. On Wednesday 29th April 2009, the chairperson, Lord Morrow and Mr Ken Robinson, accompanied by the clerk to the Committee on Procedures, attended two meeting in the Scottish Parliament. The first meeting was with the members of the Scottish Parliament who sit on the Standards and Privilege, Procedures and Public Appointments Committee. The second meeting was with Scottish Parliament and Government officials.

2. The meetings had been organised on request of the Committee on Procedures in connection with its inquiry into legislative consent motions.

Meet with members of the Standards, Procedures and Public Appointment Committee to discuss the background to the Standing Order changes for LCMs

3. The meeting was attended by the following MSPs –

• Mr Gil Paterson (Convener)
• Mr Dave Thompson
• Mrs Nanette Milne
• Mr Robert Brown

4. The meeting started with a summary and overview of the history of LCMs in the Scottish Parliament. During the passage of the Scotland Bill in 1998, Lord Sewel put forward the case for a convention to manage the legislative boundaries between Westminster and the new Scottish Parliament. This was the Sewel convention.

5. In practice the convention took on the formal shape of the Memorandum of Understanding (MOU) between the UK Government and the devolved administrations (Devolved Guidance Note 10 [DGN10]).

6. During the first few years of the Scottish Parliament, practice gradually evolved and developed. Agreement was reached at Ministerial level, a memorandum was prepared and send to the relevant committee, and a “Sewel" motion was lodged and the Parliamentary Bureau scheduled time for it be taken either formally or after a debate.

7. The process was not governed by Standing Orders and it was left to the Minister to decide matters of referral and timing without the normal safeguards. During an inquiry by the Scottish Procedure Committee the following principal criticisms were identified –

a. that it was over used and imposes a general UK solution where a distinctly Scottish approach would have been preferred.

b. that the lack of formal procedures implied a lack of transparency and accountability.

c. that there was a shortage of information and insufficient time for scrutiny and debate.

8. The inquiry report recommended moving from relatively informal arrangements to a process governed by Standing Orders with the aim of improving accountability and transparency and maximizing the time available for scrutiny.

9. The discussion between Committee on Procedures members and the Scottish MSPs focused on

• MSPs in this mandate are largely content with the procedures and processes. However, in the first mandate there was some suspicion that power was being given away to Westminster,
• LCMs can and are used to give additional powers to the Scottish Ministers,
• LCMs can be used to save time and allow the Scottish Parliament to deal with other issues,
• The Scottish National Party, as a minority Government, are content with LCMs.

Discussion with Dougie Wands, clerk to the Scottish Parliament Justice Committee and Duncan Isles, head of Constitutional Policy & Civic Participation Team, Scottish Government

10. Officials explained the cycle of LCMs noting that the cycle is driven by Westminster. The Scottish Executive examine the UK Government draft legislative programme (published May / June) and map out what bills may require a LCM in the Scottish Parliament. This is done via dialogue with officials in the Scottish Office and the Scottish Executive.

11. After the Queen’s Speech, the Scottish Government writes formally to the Presiding Officer to say what LCMs are likely. This provides an “early warning mechanism" to the Parliament and to Committees.

12. However, the pace is dictated by Westminster at all time and it is accepted that there will be a substantial “back and forth" between the UK and Scottish Governments. Mr Duncan Isles explained that there is a complex network of relationships to get the information and keep it up to date. However, the fact that the Scottish Government are able to inform the Parliament of potential LCMs in advance, does lead to a general contentment in the Parliament.

13. Officials explained that -

• amendments to LCMs are rare and that amendments seeking to put conditions on the consent would not be accepted,
• that LCMs do not give away competencies; they only allow the UK Government to legislation in very narrow ways.
• once LCMs is given, it can not be rescinded but it is possible for parliamentary consent to be given and then for the Scottish Government to legislate in that area at a later date.

14. Officials also explained that working to the Westminster timetable can put time pressures on the Scottish Committees. Scottish Committees produce reports that be tabled five days before the LCM is taken. The reports produced are short and sharp, often only a few page, turned around in one week and are often not debated. However, the Scottish Government see the reports as an important constitutional element.

15. A summary of the process is attached.

Stella McArdle
Clerk

Extract from the Scottish Parliament
– Standing Orders

CHAPTER 9B
CONSENT in relation TO UK PARLIAMENT BILLS

Rule 9B.1 UK Parliament Bills making provision requiring the Parliament’s consent

1. In this Chapter, a “relevant Bill" is a Bill under consideration in the UK Parliament which makes provision (“relevant provision") applying to Scotland for any purpose within the legislative competence of the Parliament, or which alters that legislative competence or the executive competence of the Scottish Ministers.

Rule 9B.2 Legislative consent motions

1. A motion seeking the Parliament’s consent to relevant provision in a relevant Bill shall be known as a legislative consent motion. A legislative consent motion shall identify the relevant Bill by reference to its short title and the House of the UK Parliament in which and the date on which it was introduced.

2. A legislative consent motion shall not normally be lodged until after the publication of the lead committee’s report in accordance with Rule 9B.3.5 below.

3. Every legislative consent motion lodged shall be taken in the Parliament. The Parliament shall not normally take such a motion earlier than the fifth sitting day after the day on which the lead committee’s report under Rule 9B.3.5 below is published.

Rule 9B.3 Legislative consent memorandums

1. A member of the Scottish Executive shall lodge with the Clerk a memorandum (“a legislative consent memorandum") in relation to—

(a) any Government Bill that is a relevant Bill on introduction, normally no later than 2 weeks after introduction;

(b) any Private Member’s Bill that was a relevant Bill on introduction and remains a relevant Bill after the first amending stage in the House in which it was introduced, normally no later than 2 weeks after it completes that stage;

(c) any Bill that, by virtue of amendments—

• agreed to; or
• tabled by a Minister of the Crown or published with the name of a Minister of the Crown in support, in either House, makes (or would make) relevant provision for the first time or beyond the limits of any consent previously given by the Parliament, normally no later than 2 weeks after the amendments are tabled or agreed to.

[NB: The above Rule (9B.3.1) applies only in relation to Bills introduced, or amendments agreed to or tabled (as the case may be), after 30 November 2005.]

2. Any member (other than a member of the Scottish Executive) who intends to lodge a legislative consent motion in relation to a relevant Bill shall first lodge with the Clerk a legislative consent memorandum, but shall not normally do so until after a member of the Scottish Executive has lodged a legislative consent memorandum in respect of that Bill.

3. A legislative consent memorandum shall—

(a) summarise what the Bill does and its policy objectives;

(b) specify the extent to which the Bill makes provision—

• for any purpose within the legislative competence of the Scottish Parliament; or
• to alter that legislative competence or the executive competence of the Scottish Ministers;

(c) in the case of a memorandum lodged by a member (including a member of the Scottish Executive) who intends to lodge a legislative consent motion, set out a draft of the motion and explain why the member considers it appropriate for that provision to be made and for it to be made by means of the Bill; and

(d) in the case of a memorandum lodged by a member of the Scottish Executive who does not intend to lodge a legislative consent motion, explain why not.

4. Notice of any legislative consent memorandum lodged shall be given in the Business Bulletin. The Clerk shall arrange for the memorandum to be printed and published.

5. The Parliamentary Bureau shall refer any legislative consent memorandum to the committee within whose remit the subject matter of the relevant provision falls. That committee (referred to as “the lead committee") shall consider and report on the legislative consent memorandum. Where the subject matter of the relevant provision falls within the remit of more than one committee the Parliament may, on a motion of the Parliamentary Bureau, designate one of those committees as the lead committee. The other committee or committees (“the secondary committee or committees") may also consider the legislative consent memorandum and report its or their view to the lead committee.

6. In any case where the Bill that is the subject of the memorandum contains provisions conferring on the Scottish Ministers powers to make subordinate legislation, the Subordinate Legislation Committee shall consider and may report to the lead committee on those provisions.

Extract from The National Assembly
for Wales – Standing Orders

Legislative Consent Memorandum

26.2 A member of the government must lay a memorandum (“a legislative consent memorandum") in relation to:

(i) any UK Government Bill that is a relevant Bill on its introduction to the first House, normally no later than 2 weeks after introduction;

(ii) any UK Private Member’s Bill that was a relevant Bill on introduction and remains a relevant Bill after the first amending stage in the House in which it was introduced, normally no later than 2 weeks after it completes that stage;

(iii) any Bill introduced into the UK Parliament that, by virtue of amendments:

(a) agreed to; or

(b) tabled by a Minister of the Crown or published with the name of a Minister of the Crown in support,

in either House, makes (or would make) relevant provision for the first time or beyond the limits of any consent previously given by the Assembly, normally no later than two weeks after the amendments are tabled or agreed to.

26.3 A legislative consent memorandum must:

(i) summarise the policy objectives of the Bill;

Legislative Consent Memorandum

26.2 A member of the government must lay a memorandum (“a legislative consent memorandum") in relation to:

(i) any UK Government Bill that is a relevant Bill on its introduction to the first House, normally no later than 2 weeks after introduction;

(ii) any UK Private Member’s Bill that was a relevant Bill on introduction and remains a relevant Bill after the first amending stage in the House in which it was introduced, normally no later than 2 weeks after it completes that stage;

(iii) any Bill introduced into the UK Parliament that, by virtue of amendments:

(a) agreed to; or

(b) tabled by a Minister of the Crown or published with the name of a Minister of the Crown in support,

in either House, makes (or would make) relevant provision for the first time or beyond the limits of any consent previously given by the Assembly, normally no later than two weeks after the amendments are tabled or agreed to.

26.3 A legislative consent memorandum must:

(i) summarise the policy objectives of the Bill;

(ii) specify the extent to which the Bill makes (or would make) relevant provision;

(iii) explain whether it is considered appropriate for that provision to be made and for it to be made by means of the Bill.

Legislative Consent Motion

26.4 When a legislative consent memorandum is laid, the government must at the same time table a motion (“a legislative consent motion"), which must seek the Assembly’s agreement to the inclusion of a relevant provision in a relevant Bill.

26.5 The Assembly must consider a legislative consent motion which has been tabled.

(ii) specify the extent to which the Bill makes (or would make) relevant provision;

(iii) explain whether it is considered appropriate for that provision to be made and for it to be made by means of the Bill.

Legislative Consent Motion

26.4 When a legislative consent memorandum is laid, the government must at the same time table a motion (“a legislative consent motion"), which must seek the Assembly’s agreement to the inclusion of a relevant provision in a relevant Bill.

26.5 The Assembly must consider a legislative consent motion which has been tabled.

CPLG Response - 29 June 09

Ms Stella McArdle
Clerk
Committee on Procedures
Room 416
Parliament Buildings

29 June 2009

Dear Stella

Committee on Procedures Inquiry into Legislative Consent Motions

Thank you for your letter dated 5 June 2009 to the Chairpersons’ Liaison Group outlining the Committee on Procedures inquiry into legislative consent motions.

At its meeting on 23 June 2009 the Chairpersons’ Liaison Group noted the findings of the Committee on Procedures in relation to the current procedures for legislative consent motions and the intention to introduce relevant Standing Orders.

The Liaison Group considered the proposal to include in the Standing Orders a provision that the relevant Assembly committee should report on the legislative consent motion before the debate. Noting the form the report would take, that allowance will be made for exceptional circumstances and that the report would be a very useful method of providing information to those MLAs not on the relevant committee the Liaison Group agrees that such a provision should be made.

The Liaison Group also supports the intention of the Committee on Procedures to ask the NI Executive to write to the Assembly and provide notification of those UK Bills likely to require legislative consent motions. This early notification will enable committees to better plan their work and assist them in scrutinising legislative consent motions.

Yours sincerely

Christine Darrah
Clerk
Chairpersons’ Liaison Group

Response from Executive Committee

Executive Division
Legislative Programme Secretariat
Room A5.34A
Castle Buildings
Stormont Estate
Belfast

BT4 3SR

Tel: 028 9052 2440 (Ext 22440)
E-mail: Jim.Hamilton@ofmdfmni.gov.uk

Stella McArdle
Clerk, Committee on Procedures
Northern Ireland Assembly
Room 430,
Parliament Buildings
Stormont
Belfast
BT4 3XX

31st July 2009

Dear Stella

Legislative Consent Motions

Thank you for your letter of 5 June seeking the views of the Executive on some of the proposals arising from the inquiry into Legislative Consent by the Committee on Procedures. The Executive has now considered this matter and its response is set out below.

The Executive welcomes the Committee’s proposals for Standing Orders to formalise the procedures for seeking Assembly agreement to a Legislative Consent Motion, including the requirements for laying a memorandum before the Assembly, with a draft of the proposed motion if appropriate, after the introduction of a relevant Bill at Westminster; and for the relevant Committee to report to the Assembly before the motion is debated.

In welcoming these proposals, the Executive would wish to emphasise again to the Committee that the deadlines for obtaining Assembly consent are often dictated by the timetable for the Bill at Westminster.

The Executive notes the Committee’s intention to apply these requirements to Private Members’ Bills which remain relevant Bills after the first amending stage in the House in which they were introduced, even where they do not have Government support at that point. The Committee is asked to keep this under review should it lead in practice to nugatory work for Departments and the Assembly.

The Executive also agrees that on publication of proposals for the UK Legislative Programme, the First Minister and deputy First Minister should bring these to the attention of the Assembly, identifying, if possible, any potential requirements for Legislative Consent Motions, but emphasising that the inclusion of devolved provisions in any Bill that might eventually be introduced is subject to approval by the relevant Minister, consultation with the appropriate Assembly Committee and agreement by the Executive.

Yours sincerely
[signed]
Jim Hamilton

Response from Trevor Reaney
Clerk/ Director General