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First Minister says current proposals are “unacceptable”.

The UK Government needs to more clearly define which bills would apply to Scotland in implementing English votes for English laws (EVEL), according to the First Minister.

Writing to Secretary of State for Scotland David Mundell, First Minister Nicola Sturgeon said the proposals as they stand are “unacceptable”, and asked for full engagement with the Scottish Government as there is a “clear Scottish interest” in the plans.

Out of 20 bills passed during the 2010-2015 UK Parliament, recently listed by the UK Government in answering a parliamentary question as not applying to Scotland, Ms Sturgeon argued that 13 of those were relevant to Scotland.

The letter highlights concerns about the narrowness of the assessment of what relates exclusively to England, with the decision limited to whether the bill legally extends to Scotland, rather than taking into account the wider financial and policy implications.

It also calls for a meeting with Mr Mundell and Chris Grayling, Leader of the House of Commons, to discuss the proposals.

Writing to Mr Mundell, Ms Sturgeon said:

“There is a clear Scottish interest in EVEL because of the impact it will have, and the proposals, as they currently stand, are unacceptable.

“The detail of the certification procedure for which legislation will be covered will be crucial. This is a technical assessment where the determining factor is whether any provision of a bill legally extends to Scotland.

“There is no mention of factoring into that decision any wider considerations of bills that do not legally extend to Scotland, but could have an impact because, for example, of Barnett consequentials arising from funding changes in England and Wales associated with the policy implemented by that bill.

“I also have concerns about how the Speaker makes his assessment; where he gets advice from, whether the UK Government has any influence on his assessment and, if so, whether the Scottish Government or the Presiding Officer of the Scottish Parliament should also have a role.

“Of the 20 bills listed by the UK Government as not extending to Scotland, no fewer than 13 of them did. Several of these Bills covered important areas such as charities, criminal justice and anti-slavery measures and had significant impacts on Scotland, over and above the Barnett implications that might flow from legislation.

“No doubt the UK Government will be considering the assessment when preparing your legislation but the Scottish Government has a direct interest in how the UK Government makes a judgement as to whether it considers EVEL applies.”

Notes To Editors

The letter says:

Your letter defending the English votes for English laws proposals was written before your colleagues conceded that they needed to be rethought. However, that gives an opportunity to make significant improvements.

I agree that a discussion is needed. John Swinney would be happy to meet you and Chris Grayling, as we have a number of concerns about the proposals. I hope that Chris's announcement that the vote in the Commons will be delayed until September will enable further consideration including full engagement with the Scottish Government.

There is a clear Scottish interest in EVEL because of the impact it will have, and the proposals, as they currently stand, are unacceptable.

The proposals would apply to Bills, secondary legislation and certain motions and measures (including decisions on the tuition fees cap for higher education institutions in England). The detail of the certification procedure for which legislation will be covered, and the Speaker's operation of it, will be crucial.

Proposed new standing order 83J sets out the criteria for this assessment as any clause of a Bill which relates exclusively to England or to England and Wales and is within devolved legislative competence. Therefore the core of these proposals involves an assessment of what is within Scotland's devolved competence.

This is a technical assessment where the determining factor is whether any provision of a Bill legally extends to Scotland (disregarding any minor or consequential effects). There is no mention of factoring into that decision any wider considerations of Bills that do not legally extend to Scotland, but could have an impact because, for example, of Barnett consequentials arising from funding changes in England and Wales associated with the policy implemented by that Bill. The Speaker's assessment is limited to the legal extent, and not to the wider policy and financial implications of the Bill. This narrowness is a significant concern for me.

You note that these proposals represent "the UK Government implementing what is, after all, a clear manifesto commitment." However the Conservative Party English Manifesto, launched by the Prime Minister on 24th April, said:

"The Speaker will be required to certify bills or clauses where English MPs must give their consent to equivalent English decisions where provisions are devolved to another part of the UK, or they have a separate and distinct effect for England. In reaching a decision the Speaker will have regard to any cross-border effects and the national significance of any legislation, for example infrastructure projects."

The proposed standing orders published last week make no reference to having regard to cross-border effects or the national significance of legislation that, in legal terms, only extends to England. Instead the assessment is purely technical and legalistic. The standing orders do not properly implement your manifesto commitment.

I also have concerns about how the Speaker makes his assessment; where he gets advice from, on what may be difficult legal issues; whether the UK Government has any influence on his assessment and, if so, whether the Scottish Government or the Presiding Officer of the Scottish Parliament should also have a role.

No doubt the UK Government will be considering the assessment when preparing your legislation but the Scottish Government has a direct interest in how the UK Government makes a judgement as to whether it considers EVEL applies.

It would be important for the Scottish Government to have an input to that consideration, as we would if, for example, there were discussions between the two governments about whether a Legislative Consent Motion is required in the Scottish Parliament.

A significant concern for me going forward is that UK Government departments might approach the development of Westminster legislation through the lens of EVEL rather than through the existing Devolution Guidance Note (DGN) 10 procedures.

The routine development of Westminster legislation should include consideration of Scottish Government interests, including the possibility of LCMs, in the normal way. A key question is therefore how and when judgements about the applicability of EVEL Parliamentary processes will be made within the UK Government Bill development process and what the impact on DGN 10 will be?

That the assessment of what legislative matters relate exclusively to England can be challenging is shown by the UK Government's recent answer to PO 4229, which asked which Government bills introduced in each of the last five years have not extended to Scotland.

The response was that the Government had introduced 20 bills that did not extend to Scotland, and provided a list. We have examined this list and have identified a number of inaccuracies and discrepancies.

Indeed some of the Bills listed required an LCM in the Scottish Parliament precisely because they did extend to Scotland, in areas devolved to the Scottish Parliament. Of the 20 Bills listed in the Answer, 8 extended to Scotland on introduction in ways that are more than minor or consequential; 5 were amended after introduction, so as to extend to Scotland; and 7 required LCMs in the Scottish Parliament because they contained provisions extending to Scotland which triggered the Sewel Convention.

Therefore, of the 20 Bills listed as not extending to Scotland no fewer than 13 of them did.

Several of these Bills covered important areas such as charities, criminal justice and antislavery measures and had significant impacts on Scotland, over and above the Barnett implications that might flow from legislation. The detail is set out in the Annex to this letter.

I have copied this letter to John Swinney and Chris Grayling, and I look forward to these matters being discussed further.

Of the 20 Bills listed by the UK Government as not extending to Scotland, the 13 bills which did apply to Scotland are:

Local Government Finance Bill
Charities Bill
Education Bill
Localism Bill
Defamation Bill
Jobseekers (Back to Work) Schemes Bill
Mental Health (Approval Functions) Bill
Criminal Justice & Courts Bill
High Speed Rail (London – West Midlands) Bill
Northern Ireland Bill
Rehabilitation Bill
Wales Bill
Modern Slavery Bill