How is it decided whether a particular issue should be a devolved or reserved matter for Scotland/Wales/NI?

[AY1975]

Does anyone know how it is decided whether a particular issue should be a devolved or reserved matter for Scotland, Wales and Northern Ireland? And to what extent does the Westminster government have the power to change something from being a devolved matter to being a reserved matter or vice versa?

AIUI if something is a reserved matter it means it's a matter reserved for Westminster with the devolved governments not being allowed any say about the issue. I would guess that matters that are deemed to affect the whole of the UK are generally reserved matters, such as defence, international relations and the UK's constitutional settlement.

I would guess that if it is considered that making something a devolved matter could create more problems than it would solve, it is made a reserved matter. For example, I seem to recall that as part of the original devolution settlements it was decided that abortion should be a reserved matter, because if it were a devolved matter, then if Scotland or Wales had more liberal abortion laws than England, then a lot of women wanting an abortion could go to Scotland or Wales to take advantage of their differing laws on the matter (or come to England from Scotland or Wales if England had more liberal laws).

I suppose whenever the Westminster government decides to introduce a new law, they always have to decide whether it will be UK-wide (i.e. a reserved matter) or will only apply in England as proposed by Westminster and be a devolved matter for the other three countries of the UK.

I believe that there are also some issues that are devolved matters in Scotland but reserved matters for Wales, presumably to do with the fact that Wales has the same legal system as England whereas Scotland has its own legal system. Wales also has basically the same education system as England whereas Scotland has its own education system, although AIUI education in Wales is a devolved matter at least to some extent. For example I seem to recall that when the Blair government decided to introduce specialist schools in England, Wales did not do the same because it did not like the concept.

This question has already come up in various existing threads but I don't think there's been a dedicated thread on it to date. This locked thread from last year on English devolution may also be of interest: www.railforums.co.uk/threads/english-devolution-discussion.254412/

 

[JamesT]

The areas of devolution will be enumerated in the legislation that set up the devolved parliaments.
Westminster remains supreme, so they could legislate on an area that’s supposed to be devolved. Indeed with abortion they did legislate for Northern Ireland in the absence of Stormont.
Going the other way, the Scottish Secretary blocked legislation on gender recognition that was deemed to overstep into UK-wide matters.
When there’s an argument then it can go to the Supreme Court who can arbitrate whether something is devolved or not.

 

[takno]

The areas of devolution will be enumerated in the legislation that set up the devolved parliaments.
Westminster remains supreme, so they could legislate on an area that’s supposed to be devolved. Indeed with abortion they did legislate for Northern Ireland in the absence of Stormont.
Going the other way, the Scottish Secretary blocked legislation on gender recognition that was deemed to overstep into UK-wide matters.
When there’s an argument then it can go to the Supreme Court who can arbitrate whether something is devolved or not.

The legislation in the absence of Stormont was done using provisions in the Northern Ireland devolution legislation for what happens when a Stormont government can't be convened.

The gender recognition legislation was blocked under a the convention that the devolved assembly can't pass leglislation which has a detrimental effect on a reserved matter - so in this case the UK government weren't legislating on the devolved matter of gender recognition, but defending the status quo on the reserved matter of the Equality Act.

While the UK government is the sovereign body and can essentially do what it likes, up to and including abolishing devolution altogether, the Sewell Convention dictates that the UK government doesn't legislate on devolved matters unless the relevant devolved assembly has passed a motion explicitly requesting this (basically the devolved assembly may have decided that it's more effective to have UK-wide legislation on a subject, even if it technically falls in their remit.