Guidance for for civil servants and policymakers on devolution

How devolution affects the way governments work

Devolution has fundamentally changed the constitutional arrangements of the UK. Officials need to be aware of how devolution affects the policies they work on or the public services they manage. There are 3 main reasons why it is important to consider devolution:

• the territorial extent of your work may be affected - you may be working on a policy that has an effect in England only, England and Wales, across Great Britain or UK-wide
• even if you are working on something that is not devolved, you may need to work with the devolved administrations to successfully implement your policy or deliver your service
• if you are working on something that is devolved in Scotland, Wales or Northern Ireland, you have a good opportunity to learn from different approaches taken elsewhere and can share learning about common problems

Devolved responsibilities

The 3 devolution settlements vary, and further information is available in the detailed guidance on the settlements.

The following things are not devolved, and HM government remains responsible for them:

• the constitution
• international relations and defence
• national security
• nationality and immigration
• nuclear energy
• broadcasting
• the UK tax system
• employment and social security (except Northern Ireland)

The devolution settlements are complex and are all different. That said, broadly speaking, the following things are devolved in Scotland, Wales and Northern Ireland:

• health and social care
• education and training
• local government and housing
• agriculture, forestry and fisheries
• the environment and planning
• tourism, sport and heritage
• economic development and internal transport

For more detail on what is devolved, you should contact your departmental devolution co-ordinator or the territorial offices, the Scotland, Wales or Northern Ireland Office, who are part of HM Government.

Considering devolution in government work

When dealing with any policy, it’s good to be clear at the outset where it takes effect. If you are working on a policy that will affect the devolved administrations, you should engage as early as possible, especially if you are developing legislation. Devolved administrations need time to consider the handling of issues, and gaining consent of devolved legislatures for Parliament to pass legislation in a devolved matter is rarely a quick process. This is also relevant when considering Private Members’ Bills. It is the responsibility of those developing government publications, including consultation exercises and green papers, to make the territorial extent clear. If you are in any doubt, seek advice from departmental lawyers and the territorial offices.

Territorial offices (the Office of the Secretary of State for Scotland, the Office of the Secretary of State for Wales and the Northern Ireland Office) are invaluable in helping you understand the detail of the devolution settlements, and how to go about contacting the devolved administrations. As they are inside the UK government, they can give you full, frank and confidential advice.

There are some formal ministerial forums of engagement – such as the Joint Ministerial Committee. You may want to put an issue before one of these forums if you need to discuss a significant issue with the 3 devolved administrations at a high level quickly or to overcome difficulties.

For certain areas of government business that are not devolved, such as national security, there is no need to consult with the devolved administrations, but it is often extremely helpful to ensure alignment with any related devolved policies – some of which may not be obvious.

Confidentiality

HM government and the devolved administrations are separate political entities with different accountabilities. The private deliberations of each must remain private. However, in the interests of good government, careful information sharing in confidence will be respected when necessary. Officials should not ask that counterparts in different administrations keep information from their ministers.

Devolution co-ordinator contact details

All Whitehall departments have a devolution co-ordinator. They can advise on your department’s relationship with the devolved administrations and how devolution affects the department’s work.

Contact details can be found on departmental intranet pages or in devolution guidance for civil servants.

For complicated or high-profile issues involving more than one devolved administration, the Cabinet Office can provide assistance: devolution@cabinetoffice.gov.uk

Legal advice on devolution: within HM government

In the first instance, queries should go to your departmental legal adviser early in the consideration of devolution issues. If necessary, they will engage the departmental devolution contact and one or more of the following.

For the Territorial Offices:

• the Office to the Advocate General (OAG) - provides advice to departments on Scots law issues and devolution issues arising under the Scotland Act 1998
• Office of the Secretary of State for Wales legal advisers - who provide advice on issues arising under the Wales Act 2017
• Northern Ireland Office legal advisers (based in Home Office Legal Advisers Branch) - who provide advice on issues arising under the Northern Ireland Act 1998

The Constitutional Law team in the Cabinet Office Central Advisory Division offers a central point of contact for GLS lawyers and gets involved in issues of cross-settlement or constitutional importance. They would also ordinarily be consulted where a department is seeking the advice of the Law Officers.

The ultimate source of legal advice on devolution issues is the Law Officers of HM Government, who are the Attorney General and the Advocate General for Scotland, along with the Solicitor General for England and Wales. They provide advice on constitutional and complex matters, including aspects of the devolution settlements.

Legal advice on devolution: within the devolved administrations

The Lord Advocate and the Solicitor General for Scotland are the Law Officers of the Scottish government.

The Counsel General is the legal adviser to the Welsh government.

The Departmental Solicitor (in the Northern Ireland Department of Finance and Personnel) is the legal adviser to the Northern Ireland Executive.

Devolution guidance notes

The devolution guidance notes set out advice on working arrangements between the UK government and the devolved administrations. They are an introduction to the main principles involved in the managing of the devolution settlements, bilateral relations, correspondence, parliamentary business, legislation and concordats.

Index to the devolution guidance notes

1. Common working arrangements [PDF] - advice on common working arrangements between the UK government and the devolved administrations. This note introduces the main principles involved in the managing of the devolution settlements and looks in more depth at bilateral relations, correspondence, parliamentary business, legislation and concordats.
2. Handling correspondence under devolution [PDF] general principles for the handling by UK government departments of correspondence from members of the devolved legislatures. Guidance on the handling of inter-ministerial and inter-departmental correspondence is available in devolution guidance note 6 (see below).
3. Role of the Secretary of State for Scotland [PDF] - functions and role of the Secretary of State for Scotland following devolution.
4. Role of the Secretary of State for Wales [PDF] - functions and the role of the Secretary of State for Wales following devolution.
5. Role of the Secretary of State for Northern Ireland [PDF] - functions and role of the Secretary of State for Northern Ireland (SOSNI) following the restoration of devolution in Northern Ireland. It makes clear that SOSNI retains responsibility for policing, criminal justice and constitutional matters affecting NI.
6. Circulation of inter-ministerial and inter-departmental correspondence [PDF] - conventions to be followed by UK government departments when they are involving devolved administrations in matters which are the subject of correspondence between UK ministers, or otherwise writing to ministers of devolved administrations.
7. Court proceedings regarding devolution issues - not yet published.
8. Post-devolution primary legislation affecting Northern Ireland [PDF] - guidance on handling legislation that affects Northern Ireland. It sets out what should be done if you wish to include in a Bill provisions that apply to Northern Ireland and deal with transferred (ie devolved) matters.
9. Superseded by devolution guidance note 18.
10. Post-devolution primary legislation affecting Scotland - guidance for UK government departments on handling legislation affecting Scotland. It sets out how the LP Committee expects departments to handle primary legislation affecting Scotland, while ensuring the smooth management of the government’s legislative programme.
11. Ministerial accountability after devolution [PDF] - general advice on matters which remain the responsibility of UK ministers, and for which they are accountable to the UK parliament.
12. Attendance of UK ministers and officials at committees of the devolved legislatures [PDF] - advice for UK ministers and civil servants on how to deal with invitations to attend committees of devolved legislatures. It does not provide guidance on the giving of evidence to these committees.
13. Handling of parliamentary business in the House of Lords [PDF] - general principles to be put in practice in business before the House of Lords. This comprises 2 separate sections on Bills, and on parliamentary questions and debates.
14. Use of Scotland Act Section 30(2) Orders [PDF] - how Section 30(2) Orders are used to amend the list of reservations in the Scotland Act - either increasing or reducing the scope of reserved matters.
15. Scottish legislative proposals giving devolved powers and functions to UK bodies [PDF] - Acts of the Scottish Parliament can, in certain circumstances, include provisions giving powers or functions to UK government ministers, UK departments or other UK bodies. The Scottish government and the UK government have agreed a protocol setting out the procedures which will apply if considering the possibility of legislating in this way.
16. Superseded by devolution guidance note 17.
17. Superseded by devolution guidance note 18.
18. Parliamentary and Assembly Primary Legislation Affecting Wales [PDF] - this note explains the legislative competence of the National Assembly for Wales (“the Assembly”) and the executive competence of Welsh Ministers, as well as the effects of the Welsh devolution settlement on UK government policy development and legislation in the UK Parliament.

Preparation of primary legislation: approach of the UK government

In accordance with the Sewel Convention (now set out in the Memorandum of Understanding on devolution, paragraph 14) the government will not normally invite the UK Parliament to legislate with regard to devolved matters except with agreement of the relevant devolved legislature.

There are a number of reasons why it may be appropriate for Parliament to legislate in devolved areas – for example some bills on non-devolved matters will not work effectively without making provision in areas that are devolved, or it may be most convenient for Parliament to implement EU or international obligations in a single instrument. In these cases a Legislative Consent Motion (informally known in the Scottish context as a ‘Sewel Motion’) is needed in the legislature concerned.

This principle applies to devolved matters in respect of Scotland and Wales. It also applies to transferred matters in respect of Northern Ireland.

Further guidance in respect of Northern Ireland is in devolution guidance note 8, in respect of Wales in devolution guidance note 18, and in respect of Scotland in devolution guidance note 10.

UK departments preparing Bills need to be alive to the possibility of a Legislative Consent Motion being necessary in one or more of the devolved legislatures. They should be aware that this can be a complex process and they must ensure that they allow adequate time for the devolved administrations to consider the issues fully. In all cases, early contact with relevant territorial offices is advisable. A similar approach should be taken in relation to bills which are due to be published in draft and for Private Member’s Bills that are supported by the UK government. Devolution issues should be resolved by the time a Bill is brought before the Parliamentary Business and Legislation Committee prior to its introduction in Parliament. Departments should address promptly the devolution implications of possible amendments during the Parliamentary passage of a Bill.

Further information