Reserved and excepted matters

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In the United Kingdom reserved matters and excepted matters are the areas of government policy where the UK Parliament had kept the power (jurisdiction) to make laws (legislate) in Scotland, Wales and Northern Ireland.

Each of these nations has been granted autonomy within the UK; therefore some power has been decentralised to them from the central government at Westminster and some has been withheld.

They are also known as reserved matters and act as a guide for which areas are devolved to those three nations and which are not. The powers are set out in three main laws for each of those nations and subsequent amendments which further devolved powers to the respective legislatures:

In Scotland, a list of matters is explicitly reserved in the Scotland Act. Any matter not explicitly listed in the Act is implicitly decentralised to the Scottish Parliament.

In Northern Ireland, the powers of the Northern Ireland Assembly do not cover reserved matters or excepted matters. In theory, reserved matters could be devolved at a later date, but excepted matters were not supposed to be considered for further devolution. In practice, the difference is minor as Parliament is responsible for all the powers on both lists and must give its consent to devolve them.

In Wales, by contrast, a list of matters is explicitly devolved to the National Assembly for Wales and any matter not listed in the Act is implicitly reserved to Westminster. Wales has since moved to a reserved powers model under the provisions contained within the Wales Act 2017.

Scotland

The Scottish Parliament was created by the Scotland Act 1998, passed by the Parliament of the United Kingdom. This Act sets out the matters still dealt with by the Westminster parliament, referred to as reserved matters.

The legal ability of the Scottish Parliament to legislate (its "legislative competence") on a matter is largely determined by whether it is reserved or not.[1][2][3][4]

Anything not listed as a specific reserved matter in the Scotland Act is automatically devolved to Scotland, including:

This is one of the key differences between the Scotland Act 1998 and the never-implemented Scotland Act 1978.

List of reserved matters

Reserved matters are subdivided into two categories: General reservations and specific reservations.

General reservations cover major issues which are always handled centrally by the Parliament in Westminster:[5]

Specific reservations cover particular areas of social and economic policy which are reserved to Westminster, listed under 11 'heads':[6]

  • Head A - Financial and Economic Matters
fiscal, economic and monetary policy
currency
financial services
financial markets
money laundering
  • Head B - Home Affairs
data protection and access to information
elections
film classification
immigration and nationality
scientific procedures on live animals
national security and counter-terrorism
betting, gaming and lotteries
emergency powers
extradition
lieutenancies
Charities

Head C – Trade and Industry

business associations
insolvency
competition
intellectual property
import and export control
sea fishing outside the Scottish zone
customer protection
product standards, safety and liability
weights and measures
telecommunications
postal services
research councils
  • Head D – Energy
electricity
oil and gas
coal
nuclear energy
energy efficiency
  • Head E - Transport
marine transport
air transport
  • Head F – Social Security
social security schemes
child support
pensions
  • Head G – Regulation of the Professions
architect
health professions
auditor
  • Head H – Employment
employment and industrial relations
health and safety
  • Head J – Health and Medicines
xenotransplantation
embryology, surrogacy and human genetics
medicines, medical supplies and poisons
welfare foods
  • Head K – Media and Culture
broadcasting
public lending right
  • Head L – Justice
Legal services
Legal aid
Coroners
Arbitration
information rights
mental capacity
personal data
public records
public sector information
Compensation for persons affected by crime and miscarriages of justice
Prisons and offender management
Family relationships and children
Gender recognition
Registration of births, deaths and places of worship
  • Head M – Land and Agricultural Assets
Registration of land
Registration of agricultural charges and debentures
Development and buildings
  • Head N – Miscellaneous
judicial salaries
equal opportunities
control of weapons of mass destruction
Ordnance Survey
Deep Sea mining
time
outer space
Antarctica

The reserved matters continue to be controversial in some quarters and there are certain conflicts or anomalies. For example, while the funding of Scottish Gaelic television is controlled by the Scottish Government, broadcasting is a reserved matter, and while energy is a reserved matter, planning permission for power stations is devolved.

Northern Ireland

Government of Ireland Act 1920

Devolution in Northern Ireland was originally provided for in the Government of Ireland Act 1920, which stated that the Parliament of Northern Ireland could not make laws in the following main areas:[7]

This was the first practical example of devolution in the United Kingdom and followed three unsuccessful attempts to provide home rule for the whole island of Ireland:

Irish unionists initially opposed home rule, but later accepted it for Northern Ireland, where they formed a majority. (The rest of the island became independent as what is now the Republic of Ireland.)

Direct rule

The Parliament of Northern Ireland was suspended on 30 March 1972 by the Northern Ireland (Temporary Provisions) Act 1972,[8] with Stormont's legislative powers being transferred to the Queen in Council.

Northern Ireland Constitution Act 1973

The Parliament of Northern Ireland was abolished outright by the Northern Ireland Constitution Act 1973;[9] legislative competence was conferred instead on the Northern Ireland Assembly. The 1973 Act set out a list of excepted matters (sch. 2) and "minimum" reserved matters (sch. 3).

The new constitutional arrangements quickly failed, and the Assembly was suspended on 30 May 1974 having only passed two Measures.

Direct rule again

The Assembly was abolished under the Northern Ireland Act 1974,[10] which transferred its law-making power to the Queen in Council once again. The 1974 framework of powers continued in place until legislative powers were transferred to the present Northern Ireland Assembly under the Northern Ireland Act 1998, following the Belfast Agreement of 10 April 1998.

Northern Ireland Act 1998

List of key excepted matters

Excepted matters are outlined in Schedule 2 of the Northern Ireland Act 1998:[11]

List of key reserved matters

Reserved matters are outlined in Schedule 3 of the Northern Ireland Act 1998:[12]

Devolution of policing and justice

After the suspension of the Parliament of Northern Ireland, policing and justice powers transferred to the UK Parliament and were subsequently administered by the Northern Ireland Office within the UK Government. These powers were not devolved after the Belfast Agreement.

The Hillsborough Castle Agreement [13] on 5 February 2010 resulted in the following reserved powers being transferred to the Northern Ireland Assembly on 12 April 2010:[14]

Some policing and justice powers remain reserved to Westminster:[15]

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

Parity

Northern Ireland has parity with Great Britain in three areas:

Policy in these areas is technically devolved but, in practice, follows policy set by the Westminster Parliament to provide consistency across the United Kingdom.[16]

Wales

Government of Wales Act 1998

The Government of Wales Act 1998 lists the following fields to be transferred to the National Assembly for Wales:[17]

Government of Wales Act 2006

The Government of Wales Act 2006 updated the list of fields, as follows:[18]

Schedule 5 to the 2006 Act may be amended to add specific matters to the broad subject fields, thereby extending the legislative competence of the Assembly.[19]

Wales Act 2017

Under the terms of the Wales Act 2017, matters not reserved are within the legislative competence of the National Assembly of Wales. These reserved matters are:

Specific reservations cover particular areas of social and economic policy which are reserved to Westminster, listed under 13 'heads':

  • Head A - Financial and Economic Matters
fiscal, economic and monetary policy
currency
financial services
financial markets
money laundering
  • Head B - Home Affairs
drug abuse
data protection and access to information
elections
firearms
film classification
immigration and nationality
scientific procedures on live animals
national security and counter-terrorism
betting, gaming and lotteries
emergency powers
extradition
lieutenancies
Charities

Head C – Trade and Industry

business associations
insolvency
competition
intellectual property
import and export control
sea fishing outside the Scottish zone
customer protection
product standards, safety and liability
weights and measures
telecommunications
postal services
research councils
  • Head D – Energy
electricity
oil and gas
coal
nuclear energy
energy efficiency
  • Head E - Transport
marine transport
air transport
  • Head F – Social Security
social security schemes
child support
pensions
  • Head G – Regulation of the Professions
architect
health professions
auditor
  • Head H – Employment
employment and industrial relations
health and safety
  • Head J – Health and Medicines
xenotransplantation
embryology, surrogacy and human genetics
medicines, medical supplies and poisons
welfare foods
  • Head K – Media and Culture
broadcasting
public lending right
  • Head L – Justice
Legal services
Legal aid
Coroners
Arbitration
information rights
mental capacity
personal data
public records
public sector information
Compensation for persons affected by crime and miscarriages of justice
Prisons and offender management
Family relationships and children
Gender recognition
Registration of births, deaths and places of worship
  • Head M – Land and Agricultural Assets
Registration of land
Registration of agricultural charges and debentures
Development and buildings
  • Head N – Miscellaneous
judicial salaries
equal opportunities
Antarctica
control of weapons of mass destruction
Ordnance Survey
Deep Sea mining
time
outer space

Previously transferred matters

Prior to the passage of the Wales Act 2017, issues were only devolved if outlined in the Government of Wales Act 1998 or the Government of Wales Act 2006.

Transferred matters for Wales are outlined in the Government of Wales Act 1998 and the Government of Wales Act 2006.

References

  1. ↑ Scotland Act 1998, s. 29
  2. ↑ Scotland Act 1998, s. 30
  3. ↑ Scotland Act 1998, sch. 4
  4. ↑ Scotland Act 1998, sch. 5
  5. ↑ Scotland Act 1998, Schedule 5, Part I
  6. ↑ Scotland Act 1998, Schedule 5, Part II
  7. ↑ Government of Ireland Act 1920, s. 3
  8. ↑ Northern Ireland (Temporary Provisions) Act 1972
  9. ↑ Northern Ireland Constitution Act 1973
  10. ↑ Northern Ireland Act 1974
  11. ↑ Northern Ireland Act 1998, Schedule 2
  12. ↑ Northern Ireland Act 1998, Schedule 3
  13. ↑ Hillsborough Castle Agreement 2010
  14. ↑ Northern Ireland Act 1998 (Amendment of Schedule 3) Order 2010
  15. ↑ Policing and Justice motion, Northern ireland Assembly, 12 April 2010 Archived 16 December 2010 at the Wayback Machine.
  16. ↑ Northern Ireland Act 1998, Part VIII, Social security, child support and pensions
  17. ↑ Government of Wales Act 1998, Schedule 2
  18. ↑ Government of Wales Act 2006, Schedule 5
  19. ↑ Government of Wales Act 2006, Schedule 5 (as amended) Archived 20 November 2010 at the Wayback Machine.

Legislation

Official guidance (published by the Cabinet Office)

Analysis

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