1.

Introduction

There are two central aspects to understanding the territorial constitution. The first is
the Union. This is based upon the Acts of Union 1706–07, which created the union
between England and Scotland. The Acts were passed by the English and Scottish
Parliaments and led to the creation of a united kingdom to be called ‘Great Britain’,
which later became the United Kingdom of Great Britain and Northern Ireland. The
second aspect is that the UK used to be a highly centralised state, with legislative and
executive power largely concentrated in London. Until quite recently, that picture of the
UK was relatively accurate, albeit that there were important nuances. Scotland, for
instance, has retained a distinct legal and judicial system ever since the union of
England and Scotland over 300 years ago. Northern Ireland, meanwhile, had a high
degree of autonomy from the rest of the UK for much of the twentieth century, with its
own administration and lawmaking assembly. There was also local government which
had a significant ability to enable local communities to govern themselves. However,
these caveats notwithstanding, the UK remained largely centralised until the late 1990s.

The territorial constitution of the UK—that is, the constitutional arrangements that
regulate the powers of and the relationships between its component parts—has
changed almost beyond recognition since the late 1990s. Those changes were
introduced by the then Labour government to devolve power to Scotland, Wales, and p.
327↵Northern Ireland. Devolution had been discussed for more than a
century.1 However, it was only really introduced by these reforms in the late 1990s.

Devolution was introduced for varied and complex reasons. An important part of the
impetus was a desire to increase and enable greater self-government and to
accommodate the diverse identities and interests of the UK’s constituent nations, in
particular the ‘Celtic fringe’ of Scotland, Wales, and Northern Ireland. Devolving power
to these nations would ensure that the people there had better, more effective, and
more accountable government that could improve their lives compared with being
governed by the UK government based in London. Further, a more flexible Union would,
it was thought, be capable of enduring in the face of demands for independence,
particularly in Scotland. Devolution thus promised the best of both worlds: greater
autonomy while remaining within the UK. In Northern Ireland, the introduction of
devolution was intimately bound up with the end of the Troubles and the peace process.
Wales has always been closer to and more integrated with England compared with
Scotland and Northern Ireland. This was reflected in the initially quite limited Welsh
devolution arrangements, which have since developed.

The strategy of using devolution to preserve the territorial integrity of the Union came
very close to abject failure in 2014, during the Scottish independence referendum
(‘indyref’). As the referendum approached, opinion polls indicated that the ‘yes’
campaign had taken a narrow lead. In the end, 55 per cent of those who participated in
the referendum voted ‘no’ to independence, while 45 per cent voted ‘yes’—a positive
result for the Union, but only by a narrow margin. The strength of support for
independence delivered a shock to the UK political system. It demonstrated that any
assumption that devolution was necessarily an antidote to nationalist sentiment was as
complacent as it was misplaced. Indeed, the ‘no’ campaign won the referendum, but
only by projecting a largely negative argument against independence and a last-minute
‘vow’ by the three main Westminster unionist political parties to devolve more powers
to Scotland in the event of a ‘no’ vote.

It cannot be assumed that the Union between Scotland and the rest of the UK will
inevitably persist—a point underlined by the 2016 Brexit referendum. A narrow majority
across the whole of the UK voted to leave the EU, but Scotland voted decisively to
remain. The same is true of Northern Ireland, albeit by a smaller majority. England and
Wales voted to leave the EU. The EU referendum thus demonstrated the different
constitutional trajectories envisaged by the peoples of the UK’s four nations. There are
continuing political tensions between the Scottish and UK governments over a second
Scottish independence referendum (‘indyref 2’). It is now widely accepted that there is a
crisis in the UK’s territorial constitution. In 2020, Gordon Brown, the former Labour
Prime Minister (2007–10), warned that only a radical constitutional revolution could
stop the UK from unravelling due to nationalism and the alienation felt by people in ‘left
behind’ regions.2 Common themes are: more engagement with people by establishing a
constitutional convention and regional citizen p. 328↵assemblies; less Whitehall
centralisation and devolving more power to regions; and reforming the House of Lords
into a regionally representative chamber or senate. On this approach, for things to stay
the same, everything must change.

That, then, is the unprecedented and intensely fraught backdrop against which we
examine the territorial constitution in this chapter. We consider three principal issues.
First, why was devolution introduced to Scotland, Wales, and Northern Ireland and how
does it operate? Second, what is the position of England? The lack of equivalent
devolution to England places it in an anomalous position. Finally, how does the
changing territorial constitution affect the nature and prospects of the Union of the four
countries?

In considering these questions we explore the ways in which the changing nature of the
territorial constitution may, in part, be driving the shift to a more legal approach to
constitutionalism in the UK. Meanwhile, the whole of the chapter is, of course, relevant
to another of our key themes; the remaking of the territorial constitution is central to the
UK’s evolving system of multilayered governance. We also consider the likely way
forward given the crisis in the territorial constitutional.

Watch the authors discuss the key themes of this chapter in the following video.
he-9780192862631-video-008

Chapter 8 video

2. Devolution in Scotland, Wales, and Northern Ireland

2.1 Where should governmental power lie?

Devolution is an attempt to answer fundamental questions about where governmental

power should reside. In a democracy, the answers to such questions must ultimately
turn upon the sort of arrangements that are considered to be legitimate by the people.
This helps to explain why there is great diversity of practice internationally. In states in
which there is a strong sense of shared identity and destiny, it may be acceptable—even
desirable—for there to be a highly centralised system of government. This is most likely
to be the case where the population of a country is homogeneous in cultural, linguistic,
ethnic, and economic terms. But where such bonds are weaker, the architecture of the
state might be commensurately looser. People may be content to live under the
umbrella of a single state—allowing it to deal with such high-level issues as defence,
national security, and so on—while demanding regional governments to represent and
serve their diverse interests and outlooks. Meanwhile, the peoples within a state may
occasionally conclude that their interests are so distinct (or even conflicting) and
affinities so lacking that they should go their separate ways entirely, leading to the
break-up of the state—either peacefully or following civil war.

Why, then, does the UK’s territorial constitution take the form it presently does? How did
we arrive at the existing balance of power between the UK state level and the devolved
level? As its name suggests, the UK was formed through the union of several nations.
The history by which England and Wales were joined is complex, but a key milestone
was reached in 1535 when, among other things, Welsh constituencies came to be
represented in the English Parliament.3 The United Kingdom of Great Britain, p.
329↵which was formed by the joining of England and Wales with Scotland in 1707,4 later
became the United Kingdom of Great Britain and Ireland in 1800.5 Thereafter, all four of
the ‘home nations’ were governed at a UK level; the laws applicable in them were
enacted by the Westminster Parliament, and they were administered by the UK
executive. That does not mean that the home nations were treated identically to one
another. The UK Parliament frequently enacted legislation that applied only to Scotland,
or only to England and Wales, while the UK government established separate
departments to deal with certain administrative matters in Scotland, Wales, and
Northern Ireland. There were and remain different unions, relationships, and histories
between each of the four countries and the UK, which in turn affect and influence
current devolution arrangements.6

The position up to the late 1990s was that the UK had one government and one
legislature, the UK Parliament, which was controlled by whichever political party
secured a majority in the House of Commons.7 Both the UK government and Parliament
were located in London, England. The UK was a unitary state. Political and
governmental power was located and exercised from the centre by the UK government
and Parliament.

It followed that even if a particular part of the UK voted overwhelmingly for a given
political party in a general election, it was possible for a different party to win control of
the UK legislature and form the UK government. There is nothing unusual about the
majority of voters in a particular part of the country favouring a party that nevertheless
fails nationally to gain an overall majority in a general election. However, the position is
complicated when the relevant part of the country identifies itself as a separate political
unit within the UK—something that is more likely if, as is the case for instance, in
relation to Scotland, there exists a distinctive history and cultural identity. In the 2019
general election, the Scottish National Party (SNP) won 48 of Scotland’s 59 UK
parliamentary constituencies. In the 2021 Scottish Parliament elections, the SNP won
64 of the Scottish Parliament’s 129 seats. Both outcomes renewed the push for another
Scottish independence referendum. This has been resisted by the UK government on
the ground that the ‘once in a generation’ 2014 independence referendum produced a
vote in favour of Scotland remaining in the UK. But given Brexit and the SNP’s electoral
success, the tensions between the Scottish and UK governments over a second
independence referendum are unlikely to go away.8

2.2 Demand and supply

In contrast to countries such as the USA, the UK’s constitution was not designed as
such. No one ever sat down with a blank sheet of paper and sketched the powers of, p.
330↵and relationships between, the different institutions and tiers of government.
Rather, the UK constitution is the product of centuries of gradual change—of pragmatic
responses to issues that have arisen from time to time. Devolution is of a piece with this
tradition: it occurred because it was desired and to the extent that it was desired. In this
sense, it has been governed by the laws of demand and supply.

Devolution is thus asymmetrical: different amounts and types of power have been
devolved to different parts of the UK. This is illustrated by the devolution referendums of
the late 1990s. The scale of the appetite for change in Scotland—reflected by the 74 per
cent support that devolution secured when put to a referendum in 1997—meant that
the original devolution package (albeit that it has since been substantially augmented)
was a relatively far-reaching one. In contrast, Wales was (at least at first) more
ambivalent about devolution—only 50.3 per cent of those who voted in the referendum
on Welsh devolution favoured it—and a more modest devolution package was thus
introduced.

The position in Northern Ireland is different. There, the position was complicated by
deep cultural and political divisions—expressed through decades violence and terrorist
atrocities that claimed over 3,000 lives—between Nationalists (who favoured Northern
Ireland’s cession from the UK) and Unionists (who did not). Devolution had existed in
Northern Ireland for much of the twentieth century, but it was ended in the early 1970s
as violence escalated. In this context, the law of demand and supply eventually
delivered an unusual and highly bespoke form of devolution, including provision for
Northern Ireland to leave the UK if such a step is supported in a referendum.9 While no
one’s first choice, this scheme represented a compromise acceptable to both
sides.10 Devolution in Northern Ireland was then closely linked to the peace process and
the end of the Troubles. But devolution in Northern Ireland since the late 1990s has
been unstable and fragile.

England, meanwhile, has no system of devolved government, a fact which underlines

the asymmetrical nature of devolution in the UK. Indeed, the issue of English devolution
does not possess the same importance as it does in, for instance, Scotland. English
people naturally view the UK Parliament as their legislature. To anyone unaware of the
underlying history and politics, the UK’s contemporary territorial constitution must
seem bizarre. The current situation would never have come about if the constitution
been designed from scratch. Devolution is part of a much wider narrative. The UK’s
constitutional arrangements are informed by a raw pragmatism that accepts a certain
roughness around the edges as the acceptable cost of accommodating diversity,
history, and tradition. However, such relentless pragmatism has a ‘reactive and
piecemeal’11 quality that overlooks the need for a ‘coherent vision for the shape and
structure of the United Kingdom’.12 Consequently, an ad hoc pragmatic approach can
create profound difficulties of its own. The way in which the eschewal p. 331↵of strategy
and design resulted in the sidelining of England in this context has certainly caused
problems. At the same time, there has been a failure to take account of the ‘cumulative
effect’ of devolution on the Union and on the relationships between the UK government
and the devolved institutions in Scotland, Wales, and Northern Ireland. In short, this
part of the constitution has been in flux. It is not settled and it is highly likely that there
will be future changes.13

2.3 Legislative competence

A fundamentally important aspect of devolution is the devolved institutions. Devolution

created new legislative and governmental institutions: the Scottish Parliament and the
Scottish government; the Welsh Assembly—now Parliament or Senedd—and the Welsh
government; and the Northern Ireland Assembly and the Northern Ireland Executive.
These are democratic and elected governments and legislatures. Before devolution,
there was only the UK Parliament and the UK government. The UK now has four
legislatures and four governments. Legislative and governmental power are no longer
centralised and based in just one place. Instead, they have been both devolved and
dispersed. The existence of elected legislatures and governments other than the UK
Parliament and government demonstrates the constitutional and political significance
of the changes introduced by devolution.

Q What might be the practical limitations of this demand-and-supply model of

constitutional reform? Why, for example, may it be difficult to establish precisely what
the people of a particular nation or region want?

An important concept of devolution is the ‘competence’ of the new institutions. The

extent to which the devolved institutions can act independently—to make and
implement laws and policies—depends upon their powers, their ‘legislative
competence’, a concept introduced by the devolution legislation. The UK Parliament
remains responsible for reserved matters (eg foreign affairs, defence, immigration, etc).
However, the devolved legislatures can act within their devolved legislative competence
(eg health, education, housing, etc). Devolved competence denotes which policy areas
are within the responsibility of the devolved institutions and which are not. The concept
of ‘legislative competence’ only applies to the devolved legislatures. It does not apply to
the UK Parliament, which remains sovereign because of the principle of parliamentary
sovereignty.

The way in which the devolution schemes were initially structured diverged as to the
models used to devolve and reserve powers, but they have since converged. This tells
an interesting story about both the history of devolution to date, and about the
dynamics that have arguably resulted in a ‘levelling up’ of devolved powers across the
relevant parts of the UK. The Scottish Parliament and the Northern Ireland Assembly
have, since their inception, possessed general legislative competence. These
devolution p. 332↵schemes used a devolved powers model. This means that they are
authorised to enact legislation on any issue, except for those matters reserved to the UK
Parliament.14 Those exceptions relate both to specific legislation that the devolved
legislatures are unable to alter, such as the Human Rights Act 1998 (HRA),15 and
particular subject areas, such as international relations and defence of the realm.16 In
addition, the Scottish Parliament and the Northern Ireland Assembly cannot validly
enact legislation that conflicts with certain provisions of the European Convention on
Human Rights (ECHR),17 or which infringes common law constitutional rights or rule-of-
law standards.18 Although broad, these legislative powers cannot be equated with the
sovereign power that the Westminster Parliament enjoys.19

The Scottish Parliament and the Northern Ireland Assembly—respectively Holyrood and
Stormont—enjoy powers that are considerable judged by their extent. It is also
important to note the type of powers they possess. Since the introduction of devolution,
the Scottish Parliament and the Northern Ireland Assembly have wielded primary
lawmaking power: they are capable, within their legislative competence, of amending,
repealing, and replacing Acts of the UK Parliament insofar as they apply to Scotland and
Northern Ireland respectively. This allows them, should they so wish, to pursue
fundamentally different policy directions from other parts of the UK.

In contrast, the system originally adopted in Wales was initially merely one
of administrative or executive—as opposed to legislative—devolution. The Welsh
Assembly was only empowered to exercise in relation to Wales certain administrative
powers that would otherwise have been exercised by UK Ministers. For example, where
an Act of the UK Parliament gave Ministers discretionary power to make certain choices,
they could be made, as far as they affected Wales, by the Welsh Assembly.20 Equally, if
UK legislation authorised Ministers to make secondary legislation,21 this power could be
exercised by the Welsh Assembly—now the Welsh Parliament.22 The Welsh devolution
scheme therefore adopted a conferred powers model. The Welsh Assembly could only
exercise those powers explicitly conferred upon it.

However, this limited approach to devolution did not enable Wales to pursue its own
truly distinctive legislative agenda. It was a weak and insubstantial form of devolution
and a source of dissatisfaction.23 The position in Wales has now changed to the model
of the Scottish and Northern Irish devolution schemes. The Welsh Parliament (‘Senedd
Cymru’ in Welsh) now has legislative competence except for reserved matters. That
said, the substance of what is devolved differs between Scotland and Wales. p. 333↵For
instance, some areas of social security have been devolved to Scotland, but not to
Wales.24

The issue of which matters are within the legislative competence of the devolved
institutions and which matters are reserved for the UK in turn raises an important
question of constitutional adjudication. What happens when disputes arise between
the UK and the devolved governments and legislatures concerning the legislative
competence of the latter? For instance, the Scottish government introduces legislation
into the Scottish Parliament on a matter which it thinks is (or should be) within its
legislative competence, but the UK government takes the view that the matter is outside
the legislative competence of the devolved legislature and therefore within the province
of the UK Parliament. How is the matter to be resolved?

Unsurprisingly, such disputes can be highly politically charged because they involve one
democratically elected government and legislature being pitted against another. There
are also political differences between the different governments. In such
circumstances, there is a particular need for an independent mechanism to resolve
such disputes. This important role is assigned to and undertaken by the UK Supreme
Court. We consider these issues further in section 4.3.5.

2.4 ‘A process not an event’

Devolution is a ‘process not an event’.25 The first 25 years of devolution in the UK

confirms this statement. In several respects, the devolution settlements introduced at
the end of the 1990s have developed significantly—in ways that underline the
susceptibility of devolution to the laws of demand and supply. Indeed, devolution
settlements do not really settle anything; they evolve over time.

The first respect in which devolution has developed since its introduction concerns the
range of powers held by the devolved institutions. For instance, powers relating to
justice and policing matters—originally excluded from the devolution settlement as part
of a compromise—were transferred to Belfast in 2010. Meanwhile, following the report
of the Calman Commission,26 which was charged with reviewing Scotland’s devolution
settlement, the powers of its Parliament were extended by the Scotland Act 2012. Most
notably, the Act effected a significant devolution of competence in relation to financial
matters, including certain aspects of taxation and borrowing.27 However, the 2012 Act
was eclipsed by the Scotland Act 2016, which was enacted following the 2014 Scottish
independence referendum. In a last-ditch attempt to shore up support for the ‘no’ (to
independence) campaign, leaders of the major UK political parties made a ‘vow’ to the
people of Scotland promising the devolution of additional significant powers if Scotland
remained within the UK. Against that background, the cross-party Smith Commission
was established, and its report28 formed the precursor to what became the 2016 Act.
Most significantly, the new Act provides for devolved p. 334↵control of a range of
matters relating to taxation and welfare payments, making Scotland fiscally
autonomous of the UK to an unprecedented degree.

The devolution settlement in Wales has been substantially augmented over time. The
Wales Act 2014 devolved relatively limited powers in relation to taxation, but also made
provision for a referendum to be held on empowering the Welsh Assembly to change the
rates of income tax payable by Welsh taxpayers. No such referendum was held, but the
Wales Act 2017 removes the need for a referendum on this point and simply authorises
the Welsh Assembly to begin exercising income tax varying powers. The Act also
expands devolved competence in Wales in areas including energy, transport, equal
opportunities, and marine licensing.

It can be seen, then, that all three devolution settlements remain works in progress as
far as the scope of devolved powers is concerned. However, devolution in Wales has
developed over time in a second respect, concerning the type of powers possessed by
the Parliament. Wales’s original devolution settlement differed from those in Northern
Ireland and Scotland. The Welsh Assembly (now Parliament) lacked the capacity to
make primary legislation. It only had those powers specifically conferred upon it (rather
than a general legislative power subject to exceptions).

The position has since changed. From 2007, the Welsh Parliament has been able to
enact primary legislation, meaning that it can set Wales on a legislative course different
from that of England. That system was introduced on a limited basis at first, which
required the Assembly to obtain the UK government’s blessing in relation to each piece
of legislation—but, following endorsement of the new system in a referendum in 2011,
the need to seek permission was dropped.

The other point of distinction between the Welsh and other devolution models related to
the use in Wales of a conferred, rather than a reserved, powers model. As explained
above, this was removed by the Wales Act 2017. That Act replaced the conferred powers
model with a reserved powers model that is in principle similar to that which has
applied in Scotland from the outset. However, that will not make the Welsh Parliament
and the Scottish Parliament equivalently powerful. There are substantially more
reserved matters in respect of Wales than Scotland. Nevertheless, the general direction
of travel has been in favour of devolving more powers or competencies over time. This
has occurred as a result of political discussion between the devolved institutions and
the UK government and the former wanting more powers devolved.

The devolution systems have, then, developed in terms of both the degree and types of
power to which they relate. There is also a third important respect in which such
evolution can be discerned. It relates to the constitutional security of the devolution
arrangements. Those arrangements had been introduced by legislation that did not
provide any legal guarantees as to their permanence. Devolution was established by,
and could therefore be abolished by, the UK Parliament. That does not mean that it
would have been politically straightforward for the UK Parliament unilaterally to
interfere with or abolish devolution. However, the devolution legislation now recognises
that the Scottish and Welsh governments and Parliaments are now ‘permanent’ parts of
the UK constitution.29
p. 335↵We examine the significance of the Scottish and Welsh ‘permanence’ provisions
later.30 But, the key point here is that the very fact that the UK Parliament acknowledges
the Scottish and Welsh devolved institutions to be permanent is symbolic of the depth
of the constitutional roots that devolution has acquired since the late 1990s.

The position in Northern Ireland is, again, different and needs to be specifically
considered. The different trajectory of Northern Ireland arises because of its deep
divisions, history, and its contested place in the UK. Since 1973, UK legislation has
provided for a possible referendum on the status of Northern Ireland as part of the
UK.31 Under the Northern Ireland Act 1998, Northern Ireland will remain part of the UK
unless a majority of people in Northern Ireland vote in a referendum to leave the UK.32 If
a majority of the people in Northern Ireland voted to leave the UK and form part of a
united Ireland, the UK government would then negotiate the matter with the Irish
government. The decision whether to have such a referendum is a matter for the UK
government. There has never been such a referendum, but it could happen in the future.

Devolution in Northern Ireland has been very unstable because of fundamental

underlying and intractable political differences between Nationalists and Unionists.
Nationalists want to leave the UK and Unionists want to remain part of the UK. The basic
idea of devolution in Northern Ireland was to provide a constitutional framework for
power-sharing in a deeply divided society. This has been a major challenge. There have
been long periods in which the Northern Ireland institutions have been suspended
because power-sharing has broken down. The high degree of instability in Northern
Ireland arises from acute political differences: ‘a lack of inter-party trust, policy
differences, diverging interpretations of agreements, conflicting constitutional
objectives and a lack of political maturity’.33

During the periods in which devolution has been suspended, Northern Ireland has been
governed through direct rule by UK government Ministers, but more recently through
indirect rule. Indirect rule is an unusual state of affairs. It means that there are no
Northern Ireland Ministers in power and UK Ministers have a limited residual role,
including setting a budget.34 It also means that, in practice, Northern Ireland is
principally governed by Northern Ireland civil servants exercising the powers of
Ministers.35 This means that there is no political accountability for important policy
decisions, especially, for instance, making decisions about cutting budgets when, for
instance, funding for Northern Ireland from the UK government has been reduced. In
2018, the House of Commons Northern Ireland Committee described this p.
336↵situation and the consequent ‘democratic deficit’ as a ‘gross political failure’ that
‘cannot be sustained much longer without serious consequences for the people of
Northern Ireland’.36 Nonetheless, indirect rule seems now to have become the default
position when the Northern Ireland devolved institutions cannot function.37
Q Is it a good thing that devolution in the UK takes the form of (in effect) an ongoing
work in progress? What are the advantages of such an approach? What might be the
risks?

2.5 Devolved government

All three of the devolution schemes involve the transfer of governmental power to the
devolved governments: the Scottish and Welsh governments and the Northern Ireland
Executive. Each system of devolved government follows the general Westminster model
of ‘parliamentary government’, that is, the devolved government is embedded within
and held to account by the respective legislature—in the same way that the UK
government is part of the UK Parliament. There is no strict separation of powers model
by which the devolved government is institutionally separate from the devolved
legislature. In terms of political leadership, there are First Ministers of the devolved
governments.

There are important differences between the individual devolution schemes. Following
an election, members of the Scottish Parliament (MSPs) must nominate one of their
number to be appointed First Minister by the King.38 If one party secures an overall
majority, its leader is highly likely to become First Minister; otherwise, a coalition is
likely to be formed, with the leader of the biggest coalition party becoming First Minister.
He then appoints the other Ministers drawn from MSPs who are members of his own
party and any others with which it has formed a coalition.39 Like its Westminster
counterpart, the Scottish Parliament can confer discretionary and delegated lawmaking
powers on the Scottish Ministers,40 who also exercise in relation to Scotland all powers
relating to devolved matters that had been conferred on UK Ministers prior to
devolution.41 The upshot is that the Scottish Government now governs Scotland except
in relation to those ‘reserved matters’ that remain the responsibility of the UK
government and authorities. The role of UK Ministers in relation to Scotland is therefore
limited, given that the major domestic areas of governance—including the most
politically high-profile issues of health and education—are largely devolved.

Originally, the position in Wales was very different: only executive power was
transferred, and this vested in the Assembly itself, albeit that it could delegate such p.
337↵power.42 However, the Welsh Parliament now has primary lawmaking powers, and
a formal legal distinction is made between the Parliament, as a legislative body, and the
Welsh Government.43 The Welsh Parliament’s role is to enact legislation and hold the
Welsh government to account, while the latter now exercises the administrative powers
in respect of devolved matters. A First Minister and other Welsh Ministers are appointed
in broadly the same way as their Scottish counterparts; all must be Members of the
Senedd (the Welsh Parliament), thus conforming to the familiar model of parliamentary
government.44
Arrangements in Belfast also follow that pattern, with a separate Northern Ireland
Executive drawn from the membership of the Assembly. However, the way in which the
Executive is appointed and composed represents a highly bespoke solution to the
specific problems faced by Northern Ireland. It was clear that, in a sharply divided
community, devolved government would only be perceived as legitimate—and have any
prospect of contributing to the ending of terrorist violence—if it enjoyed the support of
both Nationalists and Unionists. This meant that it would be unacceptable to adopt a
model that enabled a single party, or a coalition of like-thinking parties, to form the
executive government. Instead, it was felt necessary to require parties
representing both sections of the community to share power. So, following elections to
the Assembly, the nomination for First Minister is made by the nominating officer of the
largest political party of the largest political designation (currently the Unionists), while
the nomination for Deputy First Minister is made by the nominating officer of the largest
political party of the second largest political designation (currently the Nationalists). In
practice, this means that the two senior ministerial offices are held by one Nationalist
and one Unionist politician.45 Detailed rules ensure that no political party46 can
monopolise the other ministerial portfolios.47

This is why devolution in Northern Ireland is often called ‘power-sharing’ There is a

power-sharing executive; coalition government is the legally stipulated norm. This is a
highly unusual approach that seeks to solve a set of very particular problems arising
from the political divisions in Northern Ireland. There is no clearer illustration than this
of the UK’s approach to devolution, in which pragmatism is paramount: a ‘differential
approach to the arrangements for each country’, reflecting their individual ‘histories and
contemporary circumstances’.48 However, if the distinctiveness of the Northern Ireland
model has been illustrative of how particular and different Northern Ireland’s
circumstances have been, one recent development is perhaps indicative of the fact that
the political, and so constitutional, situation in Northern Ireland has improved. Until
2016, there was no official opposition in the Assembly, and little by way of an unofficial
opposition, given that most parties had ministerial members of the Executive under the
power-sharing arrangements. However, the p. 338↵Standing Orders—the internal
rules—of the Assembly have now been amended to provide for one or more parties to
form an official opposition.49 Any party that was entitled to nominate one of its members
for a ministerial post but which declined to do so can now choose to be recognised as
part of the official opposition. The intention is that this will better equip the Assembly to
perform its role of holding the Executive to account. As noted earlier, there have been
periods during which power-sharing has broken down. At the time of writing, power-
sharing in Northern Ireland has collapsed. There are no Northern Ireland Ministers and
the Assembly is suspended. Instead, in Northern Ireland there has been indirect rule of
Northern Ireland by its civil servants. This has proved to be highly problematic
especially in light of significant cuts to public spending and budgets in Northern Ireland.
In 2024, power-sharing in Northern Ireland was restored and its political institutions—
the Executive and Assembly—started functioning again.

2.6 Democracy and devolved voting systems

As we saw earlier, one of the objectives underlying devolution is the enhancement of

democracy by enabling people to be governed by institutions over which they feel they
have real influence, and to which they therefore consider themselves genuinely
connected. Devolution mainly pursues this goal by providing institutions that are more
proximate—geographically, politically, and culturally—to the people. But it is, of course,
also important that the process whereby representatives are elected to serve in the new
devolved legislatures is a democratic one.

The voting system used for elections to the Scottish and Welsh Parliaments differ from
that used for elections to the House of Commons. Known as the additional member
system, it involves dividing Scotland and Wales into both constituencies and
larger regions. Voters cast ballots to select both constituency members and regional (or
‘additional’) members. The former are elected under the first-past-the-post (FPTP)
system: the candidate with the greatest number of votes in each constituency becomes
its representative in the legislature. This ensures the valuable link between constituents
and their representatives. Meanwhile, additional members—of whom there are several
for each region—are chosen by voters casting ballots for political parties rather than
individuals. The regional seats are then allocated by applying a mathematical formula
that seeks to ensure that a party’s total number of seats in the legislature broadly
reflects its overall share of the vote. This produces results that are more proportionate—
particularly in respect of smaller parties—than the unadulterated FPTP system used for
elections to the House of Commons. For instance, in the elections to the Scottish
Parliament in 2016, the Liberal Democrats obtained 7 per cent of the votes cast and 4
per cent of the seats in the Scottish Parliament. In contrast, in the UK general election in
2019, the Liberal Democrats got 11.5 per cent of the votes cast but less than 2 per cent
of the seats in the House of Commons.

In 2023, the Welsh government introduced a Bill to increase the number of Senedd
Members from 60 to 96.50 The voting system would also be changed. All Members of the
Senedd would be elected on the basis of one vote and one ballot paper, as opposed p.
339↵to the current two. There would be six Members per constituency elected on
closed proportional lists. The purpose of the change is to make the Welsh
Parliament/Senedd more effective by increasing its ability and capacity to hold the
Welsh government to account and also to reflect the significant changes to the Welsh
devolution settlement since 1999, including lawmaking and tax-raising powers.

Northern Ireland uses a system known as the single transferable vote for elections. This
is different from the model that applies in Scotland and Wales, but is also designed to
ensure that the political make-up of the legislature closely reflects each party’s share of
the popular vote.51 One important consequence of the additional member system and
the single transferable vote is that they make it less likely that any one party will gain an
overall majority, thus making minority or coalition government more probable in the
devolved legislatures than it is in the UK Parliament.52

2.7 The wider importance of devolution

We consider further the recent and future constitutional developments concerning

devolution in section 4. We end this section by re-emphasising the importance of
devolution for the UK constitution. The devolved governments and legislatures are now
well established in their respective countries. These institutions were created by Acts of
Parliament, but they are altogether different from being just another public body
established by the UK Parliament with statutory powers. What distinguishes the
devolved institutions is that they gained and retain their legitimacy through the
democratic approval of the electorate in their home nation. They are responsible for
making policy and law within their legislative competence. They are responsible for
delivering public services. They are also accountable to the people in their home nation.

It is also important to bear in mind that in addition to the devolved governments, there
are also a whole range of other public bodies that deliver devolved public services and
other public bodies that scrutinise them.53 Devolution has additionally enabled the
devolved nations to be innovative. For instance, the Welsh Parliament created the
Future Generations Commissioner for Wales, a distinctive body which requires Welsh
public bodies to think long-term about their decisions to address social issues.54 There
are many other examples in which the devolved institutions have made laws and
introduced policies that are quite different from those of the UK government.

All of this matters enormously. Devolution has deeply affected how people in the
devolved nations think about government and in particular ‘their’ government. For
instance, people in Scotland, Wales and, Northern Ireland look to their respective
devolved governments to take the lead on matters such as health, education, p.
340↵the environment, agriculture, transport, and many other areas. UK institutions
retain a residual role on matters such as defence, foreign affairs, financial and
economic issues (except devolved taxes), and other matters.

The devolved institutions have also become symbolic of national identity and given the
devolved nations a political voice. The democratic and nationalist character of the
devolved institutions—especially in Scotland—has given them a degree of political
power far beyond their formal legal powers. As a political matter, the Scottish
government has articulated a distinctive Scottish position against UK policies on areas
such as nuclear weapons, climate change, social security, and immigration55 and on
matters of personal political leadership.56 It has been noted that ‘the locus of Scottish
politics, in both devolved and retained competences, has shifted from Westminster to
Holyrood’.57 This underlying political shift has occurred because the devolved
institutions are perceived as being ‘closer to home’ than the more distant Westminster
government and Parliament.

By contrast, the situation in England is different because there is no equivalent scheme

of devolution. People in England continue to look only to the UK government and
Parliament and not to any devolved English government and legislature—because there
are none. We therefore need to consider the position in England, why it does not have
devolution, and what, if anything, has filled that void.

Test your understanding of this section by answering Self-test questions 8.2.

3. England

3.1 Introduction

England is the UK’s largest country. It accounts for 85 per cent of the UK’s population.
There are no devolved institutions in England. There is no English Parliament and
government. Devolution to England happens by default when Scotland, Wales, and
Northern Ireland opt out of UK-wide policies. When this happens, the particular
function—such as health or education—becomes in effect an English devolved area.
This is not as a result of a deliberate decision to devolve that area of responsibility from
the UK government to an English government. It occurs only because that area has been
devolved to Scotland, Wales, and Northern Ireland. This is devolution by default.

p. 341↵Even then, there are no distinctive English institutions that correspond to the
devolved legislatures and governments elsewhere. Rather, the UK Parliament and the
UK government function as the de facto English legislature and government. For
instance, the Department of Health and Social Care is a UK government department,
but in name only. In practice, it is responsible for a policy area—health—which has long
been devolved in Scotland, Wales, and Northern Ireland. The UK government’s
Department of Health and Social Care is, then, in substance, an English government
department.58 By contrast, the Ministry of Defence and the Foreign, Commonwealth and
Development Office remain in substance UK government departments because their
functions—defence, foreign affairs, and international development—are retained at the
UK level. Given increased devolution to the three other nations, the UK Parliament
increasingly legislates only for England.

This somewhat obscure form of ‘English devolution through the backdoor’ is inherent in
the incoherent and asymmetrical nature of UK devolution and the absence of formal
devolution in England. The result is that ‘England is a state of mind, not a consciously
organised political institution’.59 It might be thought that devolution to Scotland, Wales,
and Northern Ireland is not necessarily problematic. After all, only a minority of people
in the UK—15 per cent—live in devolved countries. However, there are significant
constitutional implications for England of having devolution elsewhere. All of which
gives rise to the so-called and vexed ‘English question’, although it is in fact more
accurate to think of two distinct—but related—questions.

First, should England as a whole be given a constitutional voice through, for instance,
the creation of an English Parliament and an English government? Second, should
devolution (or something akin to it) apply to England at a more granular and regional
level? After all, if devolution is about taking power closer to the people, it is not obvious
that devolving power to England as a whole would achieve very much give the size of
England compared with the three smaller nations. Creating distinctive English devolved
institutions would not take power that much ‘closer to the people’. On the other hand,
there is a growing sense that England lacks the benefits of devolution enjoyed by the
other three nations.60

This raises a second question about whether regional government within England
should be introduced. For instance, if English political units could be created of a size
that would be comparable to those presently constituted by the devolved nations, then
could this provide the way forward? For instance, Yorkshire has a roughly equivalent-
size population to Scotland. If so, then should it have a similar devolution scheme as
Scotland with a Parliament and government? Or, more likely, should it have some
form(s) of regional devolved government?

The position is made more complex by the fact that these two questions interact with
one another as well as with other issues. For instance, should it be a matter of choosing
between the first and second approaches, or might they be combined? Should there be
an all-England tier of government and regional governments within p. 342↵England, or
just one of those (and, if only one, which one)? Questions also arise about how any of
these arrangements might relate to the existing system of local government in England,
which we will consider. There are also questions about how any such arrangements for
England would fit into the bigger constitutional picture. For instance, would English
devolution (depending on which form it took) require the adoption of a federal
constitution for the UK as a whole?61 If so, then how would that actually work in
practice? In the following sections, we explore these issues, distinguishing—but also
drawing connections—between all-England approaches and those based on regional
government in England. We will see that, as things currently stand, the situation is
inchoate, that is, it is undeveloped. It has evolved considerably since the late 1990s, but
English devolution is far less settled than in the three smaller nations.

3.2 England as a whole

3.2.1 A voice for England?

No governmental institution exists to provide a ‘voice for England’ by legitimately
arguing its case ‘as against Scotland, Wales, and Northern Ireland’.62 The UK
government acts the de facto government of England. However, it cannot, arguably, act
as England’s advocate as this ‘would be seen as partisan, given that it is supposed to be
promoting the interests of the UK as a whole’, thereby giving rise to ‘inequalities’ within
the UK that are not ‘consistent with principles of good governance, transparency, and
equality’.63 While this point is difficult to refute, it has been doubted by some whether
England needs such an advocate. For example, Lord Falconer, when he was Lord
Chancellor in the Labour government in the 2000s, argued that the ‘essence of
devolution is to protect the legitimate interests of Scotland and Wales’64—a
requirement based on the fact that ‘England and English MPs represent over 80 per cent
of the population and over 80 per cent of MPs’.65 England, on this view, is big enough to
look after itself; only the smaller nations require the special voice afforded by
devolution. But while this analysis may have been a satisfactory response in 2006, the
mood has changed significantly since then. England does not necessarily speak with
one voice. It is now increasingly accepted that English regions outside London and the
South East lack the same degree of political influence and this has fuelled feelings of
discontent and disenfranchisement.

The most immediately obvious solution would be to establish an English Parliament and
an English government. They would do for England the types of things that the Scottish
Parliament and government do for Scotland, while the UK institutions would deal with
pan-UK matters such as defence, international relations, and certain p. 343↵aspects of
taxation and spending. This would then mark a shift to full-scale federalism: a UK
Parliament and legislatures for all of the four nations.

However, for several reasons, there is no prospect of such an approach being followed.
First of all, the English Parliament is the UK Parliament in Westminster. It was the
English Parliament for centuries prior to the Union with Scotland. Second, there is no
obvious and strong public clamour for all-England institutions. Third, there is little
appetite amongst the political class for the enormous upheaval that such a major
constitutional innovation would entail, although English public opinion has been
moving in favour of other forms of devolution.

Fourth, it is far from clear whether the model of a separate English Parliament would be
viable. What would be the relationship between the UK Parliament and an English
Parliament, given that England accounts for such a large majority of the UK’s
population? What would be the arrangements as regards an English government? What
would happen in the event of disagreements between the UK Parliament and an English
Parliament? It has long been considered that the potential for inter-institutional
conflicts between the UK Parliament and an English Parliament would potentially
paralyse, if not decimate, the coherence and strength of the UK’s political and
constitutional system. In 1913, the then Prime Minister, HH Asquith, argued that, given
the size of England, ‘a system of four provinces of which England is one’ would be ‘so
lop-sided, so top-heavy, and so unequal a system, that it is impossible that it should
retain its equilibrium for any great length of time’; if there was tension between the UK
Parliament and an English Parliament, then the whole system ‘would fall into the
grossest absurdity’.66 There would, of course, also be significant analogous problems
about the existence of any English government and its relationship with the UK
government. In 2022, the Lords Constitution Committee concluded that establishing an
English Parliament would crystallise England’s relative strength—in population and
economic terms—vis-à-vis the existing devolved legislatures and thereby destabilise
the Union. But nor would it do anything to address the need for greater decentralisation
within England, which has the greatest potential to resolve concerns about the
governance of England.67

For these reasons, it has always been accepted that there are insuperable problems in
establishing separate English devolved institutions. On the other hand, doing nothing is
not a sensible way forward. The problem is well captured by the ‘West Lothian question’.

3.2.2 The ‘West Lothian question’

That an English-Parliament-and-government model would not work has long been the
received wisdom. As a result, proposals for reform in respect of England have tended to
focus on the possibility of regional government within England. We examine that issue
later. However, even if the positive case for all-England institutions does p. 344↵not
stack up (or at least lacks sufficient backing), a problem—one created by devolution to
Scotland, Wales, and Northern Ireland—remains.

That problem is called the West Lothian question.68 It concerns the ability of MPs in the
UK Parliament representing non-English constituencies who can then influence English
legislation on areas that are devolved elsewhere.

Let us explain. With devolution to Scotland, Wales, and Northern Ireland, there are now
Scottish Members of the UK Parliament in London (MPs) and also Members of the
Scottish Parliament in Edinburgh (MSPs). The same goes for Wales and Northern
Ireland—but not for England because it does not have its own devolved legislature. MPs
in the House of Commons can vote on any measure. There are now devolved and non-
devolved policy areas. When a policy area is devolved to devolved institutions, the same
policy area remains the responsibility of the UK Parliament. This means that MPs from
Scotland, Wales, and Northern Ireland can then debate and vote on policy areas that
only affect England even though responsibility for those areas in Scotland, Wales, and
Northern Ireland has been devolved to the relevant devolved legislature.
The ‘West Lothian question’ is then this: is it legitimate for MPs representing non-English
constituencies to vote on Westminster legislation that (because it deals with matters
that are devolved elsewhere) will affect only England?

It is difficult to see how the answer can be ‘yes’. After all, there is a lack of reciprocity in
these arrangements: why, for example, should Scottish MPs vote in Westminster on
education law, given that education is devolved in Scotland and that English MPs have
no influence over Scottish education law?69 Second, the fact that English law can be
made by non-English MPs unaccountable to the English electorate arguably raises
problems of democratic legitimacy.70

These are difficult issues that go to the heart of the nature of the post-devolution
territorial constitution. The only potentially viable defence of (what was, until very
recently) England’s situation was a pragmatic one: yes, the position looked odd, but it
was acceptable because it did not, in practice, matter very much. However, experience
indicates that this is not invariably so. For example, in 2003, a Health Bill was put before
Parliament concerning, among other things, National Health Service (NHS) reforms
entailing the creation of so-called foundation hospitals. That part of the Bill
pertained only to England—and as Table 8.1 shows, although a majority of all MPs
supported the proposals, a majority of English MPs did not.

Table 8.1 MPs’ votes on amendment to Health Bill, November 2003*

Nation For foundation hospitals Against foundation hospitals

England 234 251

Scotland 44 17

Wales 24 11

Northern Ireland 0 6

All 302 285

Open in new tab

* See Constitution Unit, Devolution and the Centre, Quarterly Report: November 2003
(London 2003), p 8.

Q Do you think that these voting figures imply some sort of unfairness? If so, can you
pinpoint exactly what it is that gives rise to such unfairness?
p. 345↵Isolated examples like the Health Bill notwithstanding, the West Lothian
question remained largely academic for some time. The Labour governments of 1997–
2010 enjoyed comfortable—and usually very large—majorities, meaning that the
implementation of their legislative programmes rarely depended on non-English votes.
But the position was different during the 2010–15 Parliament. The outcome of the 2010
general election threw the West Lothian question into sharp relief: while the
Conservative Party did not secure a majority of all seats in the UK Parliament, it secured
a clear majority of English seats. England therefore found itself in the very position that
triggered calls for Scottish devolution: a clear majority (at least expressed through the
current voting system) expressed a preference for one party, yet voting patterns
elsewhere meant that that party could not (on its own) form a government.

3.2.3 ‘English votes for English laws’ (EVEL)

What, then, has been done about the problem of non-English MPs voting on English
laws? Following the 2010 election, the Conservative and Liberal Democrat coalition
government (2010–15) established the McKay Commission to consider the West Lothian
question.71 It concluded that any solution should be informed by the principle that
‘decisions at the United Kingdom level having a separate and distinct effect for a
component part of the United Kingdom should normally be taken only with the consent
of a majority of the elected representatives for that part of the United Kingdom’.72 The
Commission recommended that the principle be implemented through the UK
Parliament by means of a ‘double-count’ procedure. This would have involved making
public not just the names of MPs who voted for and against a given Bill, but also the
constituencies they represented—with a view to determining whether a Bill (or parts of
it) likely to have a separate and distinct effect on England attracted the support of a
majority of English MPs. Although no legal or procedural consequences would have
ensued if a majority of the latter type were not secured, the Commission envisaged that
a government that pressed on in the absence of the support of a majority p. 346↵of
English MPs would likely have sustained ‘severe political damage’.73 The intention,
therefore, was to discourage reliance upon MPs from unaffected parts of the UK pushing
through legislation against the wishes of the majority of English MPs, whilst stopping
short of preventing such a practice.

The McKay Commission’s proposal was never implemented. However, the West Lothian
question came dramatically back to the fore in the immediate aftermath of the 2014
Scottish independence referendum. After that referendum, the then Prime Minister,
David Cameron, said that he had ‘heard the voice of Scotland’, but that ‘the millions of
voices of England’ also needed to heard. A ‘decisive answer’ to the West Lothian
question was required. Cameron thus sought to ensure that the promises of further
devolution to Scotland made as panic set in towards the end of the referendum
campaign were balanced against the perceived need to demonstrate to English voters
that their position was being taken seriously. The government therefore introduced a
measure known as ‘English votes for English laws’ (EVEL).

In essence, the EVEL measures sought to ensure that legislation affecting only England,
or England and Wales, was approved by a majority of MPs representing English
constituencies, or English and Welsh constituencies. This involved a complex set of
arrangements. A Bill—or a provision within a Bill—triggered the EVEL procedure if the
Speaker of the House of Commons determined that the Bill or provision:

applied exclusively to England; and

was a measure that, if it were related to one of the devolved nations, could be made by
that nation’s devolved legislature.74

Whether a Bill or provision applied ‘exclusively’ to England depended upon whether it

had ‘minor or consequential effects’ beyond England. But the boundary between effects
on other parts of the country that were ‘minor or consequential’ in nature and those that
were more substantial, and which therefore took the provision out of the EVEL regime,
was difficult to draw. Legislation that, on the face of it, seemed to affect only England
might well have a variety of ‘consequential’ effects. For instance, legislation that
formally applies only to the NHS in England might have consequential effects in respect
of Wales, given that some patients who live in Wales are referred to NHS hospitals in
England.75 The Scottish government argued that legislation relating to England could
affect levels of public expenditure in England. That, in turn, could affect the amount of
funding received by Scotland because the arithmetical formula used to determine
Scottish funding takes account of public expenditure in England.76 It therefore fell to the
Speaker of the House of Commons to wrestle with these difficulties and ultimately
determine whether the EVEL rules applied. Although fears were voiced that the
Speaker’s determinations on these points might invite legal challenge, p. 347↵that was
highly unlikely as a result of parliamentary privilege, which dictates that proceedings
within Parliament cannot be questioned by any court of law.77

Once it had been determined that a given Bill or provision fell within the EVEL rules, the
core principle enshrined in those rules kicked in. That principle was that legislation to
which the rules applied could not be enacted unless it received the support of a
majority of all MPs and a majority of all MPs representing English constituencies.78 This
regime went beyond that which was recommended by the McKay Commission as it
enabled MPs representing English constituencies to block legislation, as opposed
merely to registering their objections. It was therefore no longer possible for legislation
relating exclusively to England to be ‘imposed’ upon English MPs simply because the
legislation was supported by a majority of all MPs. EVEL also applied to legislation that
introduced a tax measure affecting only England, Wales, and Northern Ireland, which
needed to be approved by a majority of MPs representing constituencies in those
areas.79

An important feature of the EVEL procedure was that it was introduced not by primary
legislation, but by changing the Standing Orders of the House of Commons. Another
important feature was that EVEL only applied to the House of Commons. It did not apply
to the legislative process in the House of Lords. However, it was the case that
amendments made in the Lords which applied to England—or England and Wales
only—were subject to a double majority vote in the House of Commons.

Another feature of EVEL was that it proved to be unstable, as we will now explain. EVEL
operated between 2015 and 2021, when it was abolished. While EVEL
represented an answer to the West Lothian question, it was far less certain that it
provided the answer. There were concerns about how the Westminster Parliament
could simultaneously function as both the UK Parliament and as a de facto English
legislature. One concern was that two ‘classes’ of MPs had been created, given that
English MPs held greater sway than other MPs in respect of England-only legislation. But
from a different perspective, there were concerns that EVEL did not go far enough. It did
not allow English MPs to force through legislation that failed to secure the support of a
majority of all MPs—it merely allowed the enactment of England-only legislation to be
resisted absent the majority support of English MPs. Nor did EVEL address larger
questions concerning the relationship between the UK Parliament and a UK government
that, in many respects, functions in practice as England’s executive. No amount of
finessing of the procedure whereby legislation is enacted can get around the possibility
that elections to the UK Parliament may yield a government that does not accurately
reflect the wishes of voters in England (as refracted through Parliament as an electoral
college). Indeed, the 2010 election is a case in point, in that the Conservative Party won
an overall majority of English but not UK constituencies. Perhaps most importantly,
EVEL potentially reinforced centralised power through a p. 348↵relatively minor change
to voting procedures in Westminster for MPs who are largely told how to vote by the
party whips. It did nothing to devolve power down to the English regions thereby bringing
it closer to the people affected and enabling them to participate more directly in
important decisions. EVEL merely elevated somewhat the role of English MPs.

The practical operation of EVEL was also complex. One assessment concluded that
EVEL had overcome the main practical and constitutional obstacles associated with it.
However, it had ‘failed to provide meaningful English representation at Westminster—
particularly in relation to supplying England, and its MPs, with an enhanced “voice”’.80

However, like other aspects of the UK constitution, things did not stand still for long. In
2021, the UK government unexpectedly abolished the EVEL procedure. The
Conservative government said that the practical implementation of EVEL had been
‘unwieldy’ and ‘baffling’. The procedure had added ‘complexity and delay to the
legislative process’.81 By creating two classes of MPs, EVEL had failed to reflect the
unique nature of the UK Parliament and the principle that all parts of the UK should be,
and are, represented equally in the UK Parliament. The government emphasised that it
was a fundamental principle that all constituent parts of the UK should be equally
represented in the UK Parliament, and Parliament should deliver for the whole of the
UK. In the government’s view, the operation of the EVEL procedure—and the constraints
on the role of certain MPs—did not support that aim. That seemed like quite an abrupt
change of position by the Conservative government.

EVEL was abolished in exactly the same way that it had been introduced; by way of
amendments to the Standing Orders of the House of Commons. It is important to note
that EVEL was abolished when the Conservative government was also reversing other
related constitutional changes, such as the Fixed-term Parliaments Act 2010. The
abolition of EVEL did not really receive detailed consideration. The debate in the
Commons only lasted for something less than an hour. EVEL was abolished without a
vote by MPs.82 This is sometimes how important constitutional changes are made in the
UK.

How, then, could EVEL be introduced by the Conservative government in 2015 and then
abolished by a subsequent Conservative government in 2021, only six years later? As
with so much of the UK constitution, we should consider both the surface arguments,
but also the underlying political motivations. The government had argued that EVEL had
been introduced while more powers were being devolved to the Scottish and Welsh
Parliaments, but it no longer reflected the unique nature of p. 349↵the UK Parliament
and the principle that all parts of the UK should be, and are, represented equally in the
UK Parliament. Moreover, EVEL had added additional stages to the legislative process,
introduced complexity, and had not served Parliament well.

This is all very well. But these types of reasons provide only a formal veneer which are
typical of these sort of statements issued by government when it is reluctant to reveal
its true motivations. The government’s statement did not engage at all with the
rationales for introducing EVEL only six years previously. The government had merely
presented conclusions, not logical arguments, for abolishing EVEL. To understand the
real reasons, we have to consider the political forces that condition government.

In this respect, a number of political motivations emerge. One is that the Johnson
Conservative government wanted to disown elements of the previous Cameron
Conservative government (2010–16), including the Fixed-term Parliaments Act 2010.
The Johnson government was also pursuing a post-Brexit, pro-Unionist
agenda.83 Abolishing EVEL reaffirmed unionist principles: one UK and a sovereign
Parliament comprising members elected on a basis of equality, representing every
community in the land, able to make laws for the whole of the UK. A related factor
concerns the problems caused by the existence of two classes of MPs in the UK
Parliament (English MPs and in particular Scottish MPs, with reduced voting rights).
Increased calls for a second Scottish referendum by Scottish nationalists could be
appeased somewhat by abolishing EVEL—and, with it, the perception that Scottish MPs
were somehow less important than other MPs. This was deemed to be a greater political
need than addressing English concerns generated by the West Lothian question. In
other words, the end of EVEL was intimately linked with the ebb and flow of the political
tide. EVEL had been adopting following the Scottish independence referendum in 2014.
It had played into concerns that the voice of England in the UK needed to be reasserted.
By 2021, the wider political landscape had changed considerably. The Conservative
government in 2019 had secured a large UK-wide, and an even larger English, majority in
the House of Commons.84 There had also been Brexit and the Conservative
government’s adoption of a more muscular and assertive form of unionism.85 Abolishing
EVEL removed a source of grievance—whether real or perceived—of Scottish
nationalists.

If this is so, then perhaps the wider point is that constitutional problems are also
intrinsically and irreducibly political matters. There can never be objective, non-
political, and permanent answers to such constitutional problems. Instead, the
answers are contingent and political parties and governments change their views
according to the way the political winds blow. This is the essence of the British ad hoc
constitutional practice and tradition of ‘muddling through’.86

p. 350↵Of course, the abolition of EVEL does not in any way mark the end of the matter.
Almost certainly, the problem of non-English MPs voting on English legislation will
resurface at some point in the future and possibly prompt whatever government is in
power to respond, but that is for another day. As Gover and Kenny note, the removal of
EVEL did ‘nothing to address the growing problem of English consent for the devolved
Union, and the lack of a distinctive voice for England within the UK’s legislative process
… the wider issue of how England should be represented within British parliamentary
government systems is not going away’.87 The whole episode reflects the problems
generated by devolution, but also the shifting politics within the Conservative
government. The West Lothian question therefore remains. Finding a sustainable and
long-term answer remains as difficult as ever.

3.3 Local and regional government in England

Viewed in one way, EVEL might be considered to have been a form of English
devolution-lite; a mechanism whereby the UK Parliament functioned as an English
legislature, albeit only to a limited extent. However, the paradoxical question arises
whether EVEL or some more thoroughgoing model involving the creation of distinct
English institutions would truly amount to ‘devolution’ for England. Both the question
and difficulties arise because England is so large. Even if it had its own government and
Parliament, those institutions would operate in respect of a population roughly ten
times that of Scotland, and almost 30 times that of Northern Ireland. Even with EVEL,
the UK Parliament still represented centralised London-based power. Could devolution
ever really be delivered for England by creating all-England institutions or is it better to
pursue devolution through a more granular approach, one that based upon involved
regional devolution?

The latter view was taken by the Labour government in 2003. The basic idea was that
England would be divided into eight regions,88 each with its own elected regional
assembly. However, the proposal quickly disintegrated. It was resoundingly rejected in a
referendum in the north-east of England in 2004 because voters were unimpressed with
the relatively modest powers of the proposed regional assembly. This raised the
concern that a needless ‘mezzanine’ tier of government was being proposed at
considerable cost but with few tangible benefits. In recent years, however, the notion of
regional governance has re-emerged in a different form. We examine that matter in
sections 3.3.5 and 3.3.6. We begin, however, with local government, which, as we will
see, forms the foundation upon which the new model of English regional governance is
being constructed. Devolution in England is increasingly taking the form of devolved
local governance. We therefore need to consider the position of local government in
England.89

p. 3513.3.1 Local government

Local government is important.90 It is a long-standing part of the constitution. It exists

throughout the UK. Our concern here is with English local government. There are 317
local authorities in England made up of five different types: county councils; district
councils; unitary authorities; metropolitan district councils; and London boroughs.
Local government employs hundreds of thousands of people. It spends tens of billions
of pounds annually. And it plays a key role in the making of decisions, the formulation of
policy, and the delivery of public services. It is obvious that certain decisions should be
made and tasks performed at a local level. It is nevertheless worth reflecting on why we
have local government—and why we have it in its current form.

A good starting point is the conclusions of the Widdicombe Committee, a body set up in
the 1980s by central government to inquire into the conduct of local authority
business.91 It argued that the value of local government consists in three principal
factors. First, local government is important for reasons of pluralism. Rather than having
a single (central) seat of government, the existence of local authorities ensures that
governmental power is, to some extent, diffused, thus avoiding the hegemony of central
government. Second, local government facilitates participation in the business of
governance. It enables citizens to shape local policy through regular elections to
councils and by virtue of the fact that individuals can more easily become directly
involved in local, than in national, governance. The liberal writer John Stuart Mill
considered these participative virtues of local government to be of great importance,
arguing that they help to provide citizens with an education in democracy.92 Third, the
Widdicombe Committee emphasised the responsiveness of local government—that is,
its capacity to make decisions and deliver services in ways that are appropriate to the
particular needs of localities. Such responsiveness is facilitated by the proximity of
local government to the electorate and the area concerned, equipping it with local
knowledge and sensitivity to local mores. A more recent inquiry concluded that local
government’s key role is ‘place-shaping’, meaning ‘the creative use of powers and
influence to promote the general well-being of a community and its citizens’—an
endeavour in which responsiveness is obviously imperative.93

3.3.2 Local and devolved government compared

There have long been concerns that local government has been constrained and
hobbled by central government’s tendency to treat its local counterpart as a poor
relation. Too often, local government is regarded by central government as a mere
service-delivery mechanism; an implementer of central government policy without
meaningful autonomy of its own. The dominance of central government vis-à-vis local
government arises in part because of the latter’s relatively weak constitutional p.
352↵position—a phenomenon that is observable when local government’s position is
contrasted with that of devolved governments.

As we saw earlier in this chapter, the devolved governments in Edinburgh, Cardiff, and
Belfast were created by the UK Parliament. It is possible that the UK government and
Parliament will interfere in the devolution settlements—for example, by curtailing the
devolved governments’ powers, making changes to how devolution works, or overriding
laws passed by devolved legislatures. There are tensions in this respect, which we
consider later.94 Nonetheless, the UK government has been far more willing and able—
and for far longer—to limit and intervene in English local government. The constitutional
position of local government is based on statute. Local authorities only possess the
powers given to them via Acts of the Westminster Parliament. This has meant that it is
relatively easy for the UK government and Parliament to intervene and interfere with
English local government.95

It is much more difficult for the UK government to intervene in devolved matters in

Scotland, Wales, and Northern Ireland without the consent of the devolved
governments concerned, although there has been a more muscular approach by the UK
government particularly with the post-Brexit arrangements. The same is not, however,
true of English local government. Local government exists (among other things) to allow
communities to order their own affairs in ways that best meet their peculiar needs and
priorities. However, English local government institutions—local authorities, city,
borough and county councils, and so on—do not enjoy the same status or security as
their devolved counterparts. Central government has repeatedly intervened over many
years to reduce the autonomy and powers of local government. An important related
feature is that most of the funding of local government—60 per cent—comes from
central government and there are strings attached in terms of how that money is spent.
English local government is currently in an acute funding crisis.

Why, then, does central government possess the political capacity to intervene in local
government to such a degree? Part of the answer concerns the position of the UK
government as the pre-eminent governing body that, given its Commons majority, can
legislate concerning local government.

Another part of the answer concerns citizens’ perceptions of, and attitudes towards,
local government. People are most likely to entertain a sense of connection with—even
the possession of a stake in—institutions with which they identify closely. National
institutions, such as the devolved legislatures and governments in Scotland, Wales, and
Northern Ireland, enjoy a particular status deriving from the sense of shared identity
and common destiny that nationhood inspires. This does not, of course, mean that
people support everything that their devolved governments do—but the ties that bind
together the citizens of the devolved nations are likely to lend a degree of popular
legitimacy to, and support for the existence of, their national institutions.

By contrast, people’s identification with local government is less strong. This is even
more so bearing in mind that we live in an increasingly mobile society in which the p.
353↵membership of many communities is transient to a significant degree, and that
such institutions may not, in the first place, necessarily be aligned with such senses of
local identity as exist. Moreover, local government generally has rather a low profile.
People often have only a rudimentary awareness of its role. This inhibits the
development of the sort of strong sense of connection with local authorities that might
guard against central government interference. There is also an unfortunate perception
that local government is somehow second-rate. The reality is, however, more complex.
While there certainly have been councils that have been mismanaged, many are quite
effective and competent bodies. Nonetheless, England has a much longer history of
being a unitary state and there is an acute political dimension. If something goes wrong
in a local authority, then UK government ministers may get the political blame for not
sorting it out and putting things right. Accordingly, central government has repeatedly
intervened in local government.

Q Does this lower level of identification with localities, as distinct from

nations, necessarily follow? What factors might mean that in some areas—towns,
cities, counties, regions—there is a stronger sense of local identity?

3.3.3 Intervention by central government

The UK government frequently intervenes—on both the administrative and legislative

planes—in English local government. Three points should be considered in this regard.
First, Parliament may intervene directly so as to alter the fundamental nature and
structure of local government. The UK government, through its control of the House of
Commons, is thus able to assert considerable influence over local government. The
most dramatic example is perhaps the Thatcher administration’s procurement of
legislation to abolish the Greater London Council, which, under the control of the
Labour Party, was highly and very publicly critical of central government policies in the
1980s.96 The Thatcher government, informed by its ideological predilection for market
economics, also made radical changes to how councils operated, resulting in the
contracting out of many local authority core functions (eg housing management and
refuse collection) and transforming councils in some spheres from service-providing to
service-commissioning bodies. The trend was maintained under subsequent Labour
and Conservative governments.

Second, the governing UK party may choose to impose its own policy preferences on
local government by requiring it to undertake or desist from undertaking certain actions.
An example of the former is furnished by the attempts of Labour governments in the
1960s and 1970s to introduce a new system of secondary education. Legally, it was for
local authorities to decide on the organisation of schools within their areas, but the
government wished to institute the ‘comprehensive’ system on a p. 354↵national
basis.97 It attempted to do this by issuing administrative directions requiring local
authorities to formulate plans for shifting to comprehensive education. When this met
with opposition from some councils, legislation was introduced requiring local
authorities to submit plans for the reorganisation of schools along the lines of the
comprehensive model.98 Meanwhile, the Thatcher administration secured the
enactment of s 28 of the Local Government Act 1988, which banned local authorities
from ‘promot[ing] the teaching in any maintained school of the acceptability of
homosexuality as a pretended family relationship’. This is a very clear example of the
ability and willingness of central government to use primary legislation as a means of
imposing its policy (including moral) preferences on local authorities, rather than
allowing such issues to be debated and decided at a local level.99

Third, as well as using primary legislation directly to intervene in local affairs, the UK
executive possesses numerous administrative powers100 to intervene in, scrutinise,
regulate, and even override the conduct of local government. An important element of
this relates to financial affairs, in which local authorities lack any substantial measure
of real autonomy. Although local authorities raise funds directly by levying the council
tax, this only accounts for 22 per cent of their spending.101 Councils depend for the
remainder—that is, the vast majority—of their income from central government. This
clearly gives the latter considerable influence, which is wielded by, among other things,
attaching conditions to such grants and by ‘ring-fencing’ of local authority budgets, that
is, specifying how resources are to be deployed by local authorities. Even in relation to
council tax, councils do not enjoy complete autonomy. Until recently, the Secretary of
State had the power to ‘cap’ council tax if he considered a local authority’s budget to be
‘excessive’. That remains the case in Wales,102 but new arrangements have been
introduced in England whereby a local referendum must be held if an ‘excessive’
increase in council tax is proposed.103

The overall position is that English local authorities are limited by central government in
many different ways. England is the most centralised country in Europe. This was not
always the case. However, it has been the case for many decades. It seems highly
unlikely that there will be a return to the type of municipal autonomy that characterised
local government a hundred years ago. English local government remains subject to
control and intervention by central government.

3.3.4 Localism

There has, though, been a recent shift towards localism. For instance, the replacement
in England of ministerial capping powers with a requirement to hold a referendum forms
part of a much larger ‘localism’ agenda, implemented through the Localism Act 2011,
the aim of which was to shift power from the centre to local communities. p.
355↵However, old habits die hard. In relation to the referendum mechanism in respect
of ‘excessive’ council tax increases, it is the Secretary of State who (subject to
confirmation by the House of Commons) sets the principles that determine what
counts as ‘excessive’. Central government has not, therefore, really relinquished control
over this aspect of local government finance.

The Localism Act 2011 also introduced a number of further reforms. One of the most
significant concerns the legal powers of English local authorities. Traditionally, councils
had only those powers conferred upon them by statute, making it necessary to identify a
specific basis in law for anything a local authority wished to do. The coalition
government considered that this risked stifling innovation, for fear of legal challenge.
The Localism Act therefore gives English councils a ‘general power of competence’,
meaning that they have ‘the power to do anything that individuals generally may
do’.104 However, this power is subject to significant limitations. For instance, where
councils have specific, restricted powers to do things, the general power cannot be
used to circumvent such restrictions.105 The Act allows the UK government to make
orders removing such restrictions, but also permits it to proscribe uses to which the
general power may be put and to set conditions upon its exercise.106

The limits of the localism agenda can also be seen in relation to the longstop powers of
central government to intervene where local government is deemed to be failing. For
example, local government is legally required to ‘make arrangements to secure
continuous improvement in the way in which its functions are exercised, having regard
to a combination of economy, efficiency and effectiveness’.107 If satisfied that a local
authority is failing to do this, the Secretary of State may direct ‘that a specified function
of the authority shall be exercised by the Secretary of State or a person nominated by
him for a period specified in the direction or for so long as the Secretary of State
considers appropriate’.108 For instance, in the light of chronic failings at various
councils, central government has intervened to bring the exercise of certain functions
falling within the direct control of the Secretary of State, and others under the control of
commissioners appointed by him. In some instances, central government has decided
that councils should be stripped of their responsibility for providing children’s services,
with the consequence that the role was taken over by an external provider.109

Where does this leave us? Is local government essentially a delivery mechanism—an
‘executory agency for national policies’?110 Or is it more of an autonomous instip.
356↵tution? Can local authorities develop their own policies and approaches in ways
appropriate to the needs of individual communities?

Nothing that has been said so far should be taken to imply that local government is
unimportant or lacking in power. It plays a fundamental role and exercises real power.
Local authorities are free, in many respects, to adopt their own policies and to develop
distinctive solutions to local problems. It is also important to appreciate that the degree
of central control of local government tends to ebb and flow and its dimensions change
and evolve. The Labour government stated in 2006 that ‘we must have the courage at
the centre to let go’, in order to ‘give local people and local communities more influence
and power to improve their lives’.111 The subsequent Conservative government pursued
a localism agenda.

Nevertheless, local government remains subject to a great deal of oversight and

intervention by central government. For instance, an empirical study examining the
impact of the ‘localism’ agenda during the 2010–15 Parliament concluded that ‘a culture
of centralism’ persists, and that any future attempts at ‘local democratic invigoration’
would, if they were to succeed, have to ‘cut away the centrally-set targets and
objectives, remove the over-prescriptive supervision of local power and afford councils
the freedom necessary to operate appropriately and effectively’.112

A particularly important form of intervention in local government is exerted through how

much funding is allocated to it by central government. Local government is highly
dependent on central government funding which has been especially important during
a period of austerity. Central government funding for councils was cut by half between
2010 and 2018, thereby significantly eroding their autonomy.113 Central government has
imposed additional statutory responsibilities upon local government to provide local
public services to people, but then failed to match this with the necessary funding. One
example concerns the Children and Families Act 2014. This Act introduced a new
system for providing educational support to children and young people with special
educational needs and disabilities. The service is administered by local authorities.
However, there is almost universal agreement that this system has largely failed to
deliver for such children and young people owing to insufficient funding from central
government amongst other things.114 There are many other instances.

The wider point is that central government can intervene excessively in local
government and dictate what it should do. It can also hand over large and additional
responsibilities to local authorities for which they are unprepared and under-resourced
to deliver. When this occurs, central government can seek to claim the p. 357↵credit for
the high-level policy while shifting the blame for failed implementation to local
government.

All of this goes to the heart of one of this book’s main themes—that is, the extent to
which governance in the UK is genuinely multilayered. The greater the extent to which
central government intervenes in local government, then the less autonomy enjoyed by
the latter, and the less it can lay claim to being a real counterweight to the power of the
central bodies. If the diffusion of power—by means of constitutional arrangements
under which authority and influence are shared rather than within the grasp of all-
powerful central institutions—is the essence of multilayered governance, then local
government clearly makes a contribution to this. But that contribution is highly
constrained by the capacity and preparedness of central government to intervene in
local government matters.

So far, we have considered English local government on its own right. But could local
government provide the basis for regional devolution for England?

3.3.5 Regional governance—combined authorities

Regional devolution in England would involve dividing England into regions or areas to
which power could be devolved. There have never been any fixed English regions used
for administrative purposes. However, over recent years, the idea of combining local
authorities together so that they become some form of regional devolved government
has gained prominence. The Local Democracy, Economic Development and
Construction Act 2009 made provision for the creation of ‘combined authorities’. A
combined authority consists of two or more local authorities, the idea being that
working together enables issues that cross local authority boundaries to be addressed
more effectively. A key plank of this policy is that combined authorities are not only able
to work together in the exercise of existing local authority powers, but are able to
exercise more extensive powers conferred upon—or ‘devolved’ to—them by central
government.

Manchester has been in the vanguard in this area; the Greater Manchester Combined
Authority (GMCA) brings together ten local authorities, having been established in 2014.
Under the ‘devolution deal’ struck with central government, the GMCA was given
(among other things) a devolved transport budget, strategic planning powers, control of
a new £300 million Housing Investment Fund, control of apprenticeship grants, and
powers to reform further education provision across the GMCA area. In 2015, Greater
Manchester reached an agreement with the UK government to ‘devolve’ £6 billion of
health and social care budgets.115 There are now many other combined authorities
which have reached their own devolution deals with the government.116

p. 358↵This process of devolving powers and budgets to combined authorities was

expanded by the Cities and Local Government Devolution Act 2016. This Act provides
for elected mayors for combined authority areas and extends the range of functions that
can be conferred upon combined authorities. The Act also enables the Secretary of
State to confer on elected mayors the functions of Police and Crime Commissioners for
the combined authority area. Meanwhile, although the early focus was on devolution to
‘city regions’, non-urban local authorities are now actively joining the combined
authorities programme. The result, over time, so far is that parts of England have
combined authorities; others do not. Some combined authorities have elected mayors;
others do not. There is no uniform pattern as to which areas have been devolved and
which have not. This has created a patchwork and mezzanine layer of government
sitting between individual local authorities and the UK central government.

3.3.6 English regional governance—analysis

It remains to be seen how things will progress in practice. However, there are several
discordant notes and areas of concern. Four are particularly worth drawing attention to.

First, the rhetoric of localism notwithstanding, the making of devolution deals remains
an essentially top-down process. The devolution deals and agreements must be
negotiated with central government. Ultimately, the centre—in the form of the
Treasury—has the final say about the content of devolution deals. For instance, the UK
government can—and in many instances so far has—insisted that local authorities
wishing to form combined authorities must accept an elected mayor as part of the
deal.117

Second, there has been a notable failure to engage with the public, with ‘devolution
deals’ instead being struck in private between central government and consortia of local
authorities wishing to form into combined authorities. The House of Commons
Communities and Local Government Committee has flagged up ‘a very significant lack
of public consultation, engagement and communication at all stages of the deal-
making process’, arguing that this sits in tension with the fact that ‘[f]or devolution to
take root and fulfil its aims, it needs to involve and engage the people it is designed to
benefit’.118

Third, the new mayors are at the forefront of the new combined authorities. This raises
two sets of issues. On the one hand, the government’s keenness on mayors is not hard
to fathom: it has been reluctant to cede powers and responsibilities without creating
high-profile individuals who will have to carry the can when things go wrong, although
there are some non-mayoral combined authorities. On the other hand, there are
questions about whether mayors are sufficiently locally accountable. Although mayors
are accountable to an overview and scrutiny committee within the p. 359↵new
combined authorities, buried deep in the detail of the 2016 Act some limitations and
centralising tendencies can be detected. For instance, overview and scrutiny
committees only have the power to review and scrutinise decisions already taken—as
opposed to future issues—while such committees can only recommend that a decision
be reconsidered rather than block it altogether.119 Central government also has
influence over the committees, including in relation to membership, the chair, and what
information must or must not be disclosed to the committees.120 The Act also gives the
Secretary of State a wide-ranging power to make provision about the governance
arrangements of local authorities, including their constitution and membership.121 The
overall impression is that scrutiny may be impeded in practice and that combined
authorities are not to be trusted to determine their own governance arrangements.

Fourth, the new combined authorities have relatively few substantive powers. In many
instances, such as the GMCA, they are more of a framework for bringing together
existing local authorities. The mayor has few executive powers. For instance, there has
been considerable uncertainty about the ability of the Manchester mayor to introduce
the equivalent of an ‘oyster card’ on trains and trams in Manchester, similar to that used
on almost all forms of public transport in London. There is a mismatch here between
public views and the reality of the mayor’s powers. Local people might think the mayor
has powers over public transport, but he does not. Therefore, the mayor may be blamed
for problems with train travel, but he has no power over them.

There are two related points. What powers the combined authority mayors have
depends on the devolution deals for their area. All mayors hold powers over spatial
planning, regional transport, skills training, and elements of economic development,
but other powers vary. There is no overall or consistent pattern across England, but an
ad hoc patchwork instead. The role of mayors also included exercising soft power by
convening partners and advocating for their area both regionally and nationally. Also,
central government has been distinctly reluctant to confer additional tax-raising powers
to combined authorities. Instead, combined authorities remain reliant upon funding
from central government. That does not seem like the most promising basis for effective
regional devolution.

Fifth, the legal basis upon which regional devolution is being carried out is
so constitutionally fragile as to call into question whether it really amounts to
‘devolution’. In two key respects, the constitutional position of combined authorities is
quite different from that of the devolved institutions in Scotland, Wales, and Northern
Ireland. In the first place, as we have already seen, the devolution institutions in
Scotland and Wales have been recognised by primary legislation as permanent.
Although, these provisions may well not amount to cast-iron legal guarantees of the
Scottish and Welsh institutions’ permanence, their political–constitutional significance
is considerable. By contrast, English local government combined authorities p. 360↵do
not benefit from any statutory undertakings as to their permanence. However, the
extent of their constitutional fragility is not limited to that omission. The Cities and Local
Government Devolution Act 2016122 amounts to little more than framework or enabling
legislation that permits central government to make orders and statutory instruments
creating bespoke arrangements for each combined authority. As a result, combined
authorities’ powers and governance arrangements are not actually set out in primary
legislation, but only in secondary legislation—meaning that the government is able
administratively to alter such authorities’ governance structures and remove powers
from them. This hardly provides combined authorities with a secure legal basis, and is
once again testament to the centralising instincts of central government that yield a
great reluctance to ‘let go’.

On the other hand, combined authorities and regional mayors provide a model to build
upon. And it is likely that there will be future developments—of some kind or other.
There is now a significant political argument that English regions outside London and
the South East, such as large parts of the north of England, feel ‘left behind’.123 Those
regions do not receive the same amount of investment in areas such as transport. The
over-concentration of political, administrative, and financial power in London makes
people elsewhere feel disenfranchised; it also distances decision-makers from such
regions, thereby often leading to inefficient and ill-informed top-down directives
imposed by Whitehall upon other parts of the country. The whole issue of ‘left behind’
regions and communities was one of the many lessons from the 2016 Brexit referendum
and can be seen reflected in other political developments. In the 2019 general election,
the Conservative government unexpectedly won a number of former Labour stronghold
constituencies in northern England.

The long-term question is: can the UK central government effectively expand and
commit to devolution in the English regions and, if so, how? The current Conservative
government has adopted the policy of ‘levelling-up’, that is, seeking to address the
regional economic disparities within England by improving productivity in northern
England and the Midlands.124 This has been accompanied by a range of regional and city
deals. It remains to be seen what ultimately comes of this.125 The Labour Party has
committed itself, if returned to power, to introducing real and lasting economic and
political devolution to communities. It seems that there is momentum in this direction,
but there is no long-term model of what will eventually come of it.

One long-standing issue is whether to reach a new constitutional settlement between

central and local government. As Stanton has argued, the existing constitutional
position of local government and its relationship with central government has long been
heavily centralised and this has had ‘a detrimental impact on the day-to-day operation
of local government, its structural arrangements, its democratic foundation, and p.
361↵its financial capabilities, as well as many other areas’.126 Stanton had therefore
argued for such a new constitutional settlement, one that goes beyond previous
legislative attempts at reform by providing constitutional protection for local
government and is based upon political consensus, legal and constitutional protection,
and bolstered by incorporation of the European Charter of Local Self-Government. Such
a constitutional settlement for local government would ‘challenge the underlying
constitutional norms that have enabled the central/devolved-local relationship to
develop in a centralist fashion’.127 In other words, to achieve a more secure
constitutional place for local government, constitutional lawyers have to think more
creatively.

3.4 England—taking stock

We need to reassess matters. With the abolition of EVEL, there is now no distinctive
English voice through the UK Parliament. English regional–local government devolution
has been pursued under the banner of ‘levelling up’. Whether this stays the course and
how it develops are both uncertain. Both EVEL (and its abolition) and the creation of
combined authorities represent highly pragmatic responses that epitomise the
approach to constitutional change adopted in England. EVEL sought to address
concerns about the representation of England within the wider UK by avoiding the
undoubted difficulties and almost incalculable upheaval that would attend the creation
of an English Parliament and government. But EVEL was a typically makeshift
constitutional reform that sought to turn the UK Parliament into an institution that was
also able to function, to a certain extent, as a de facto English legislature. The way that
EVEL was introduced by amending the Standing Orders of the House of Commons and
then abolished only six years later illustrates two points: the excessive flexibility of the
UK constitution; and the failure of EVEL to provide a durable reform. Time will tell if the
whole matter of non-English MPs voting on England-only legislation needs to be
reformed and, if so, what the answer is.

The creation of combined authorities and the levelling-up agenda are also a similarly
pragmatic attempt to provide a measure of (what is at least termed) devolution within
England. The irregular—one might say chaotic—governance landscape that will emerge
from this process, as different combined authority areas acquire different amounts and
types of power, is of a piece with the way in which devolution has been undertaken in
respect of Scotland, Wales, and Northern Ireland. The result, in all its messiness, will be
the very opposite of the sort of neatly designed constitution that is found in many other
countries. This is just the way of our constitutional culture. Any attempt to impose rigid
and uniform governance structures would be doomed to failure. This does not, however,
rule out the scope for legitimate concern. As the House of Lords Constitution
Committee has noted, the government gave little consideration to how the various
‘devolution deals’ would affect ‘the overall governance of England in the longer-term’.
Nor, it suggests, is there much evidence that the government has a clear ‘vision of what
it seeks to achieve with these reforms’ or of where all of this will p. 362↵‘ultimately
lead’.128 As we will see in the next section, those concerns apply equally when
consideration is given to the way in which the territorial constitution as a whole has
been permitted to develop in recent years.

Test your understanding of this section by answering Self-test questions 8.3.

4. The nature and development of the territorial constitution

4.1 Introduction

This section considers the UK’s territorial constitution, how it compares with
federalism, how it has been working in practice, the nature of the crisis in the territorial
constitution, the role of the courts, and the future prospects of the territorial
constitution.

The UK’s territorial constitution has undergone highly significant changes since the late
1990s owing both to the introduction and development of devolution and, latterly,
attempts to tackle the ‘English question’. Our focus now shifts to consider in more detail
the development of devolution and the place of the law and the courts in the devolution
context. We also consider the future prospects for the territorial constitution. We start
by considering what UK devolution is not: federalism. From there we consider the
development of devolution, in particular the constitutional significance of the
‘permanence’ and other provisions added in 2016–17 and the role of the UK Supreme
Court in adjudicating upon constitutional disputes between the UK Parliament and the
devolved legislatures. We then consider the crisis in the territorial constitution and the
future viability of the Union.

4.2 Federalism and UK devolution

4.2.1 Federalism

Many constitutional systems around the world can fairly be described as federal in
nature, although they differ in significant respects. Federalism is a system of
government in which power is legally divided between the federal level and the state or
provincial units. The USA is a pre-eminent example of a federal system. The USA
consists of 50 states, each with its own legislature and administration. Certain matters,
however, are dealt with on a national level by the federal legislature—Congress—and
the US administration headed by the President. On the basis of this brief description,
federalism in the USA may seem similar to devolution in the UK. However, any similarity
is only skin deep: there are four crucial differences.
First, the UK’s system is, as we already know, asymmetrical: different parts of the UK
have different amounts and types of devolved power. As a result, the UK Parliament and
government’s involvement differs across the country: they do far more in relation to
England, for instance, than in respect of Scotland. In the USA, all states possess the
same legal powers as one another. As a result, the federal government exercises the
same degree of power in relation to all 50 states.

p. 363↵Second, the US federal system emerged from a bottom-up approach. The USA
was formed by individual states deciding to join together in order that certain matters
could be dealt with collectively by a federal government. Power thus originated at state
level and was transmitted to the federal level only to a limited degree and along
uniformly agreed lines, thus producing a symmetrical distribution of powers.129 In
contrast, devolution in the UK is a top-down system: the UK Parliament is legally
sovereign, but has chosen to confer limited powers on the new devolved governments.
And those conferrals of power were effected not on the basis of a single set of
negotiated principles as to how the line should be drawn between central and devolved
government, but in light of the differing histories, attitudes, and politics of the UK’s
constituent nations.

Third, UK devolution and US federalism enjoy different degrees of constitutional

security. In the USA, the balance of power between federal and state levels is set by the
Constitution—and the Constitution can be changed only by going through a procedure
that requires (among other things) approval by 75 per cent of the states.130 The balance
of power therefore enjoys a high degree of security: changes are difficult to effect
because they require a very wide consensus. In a federal model, the allocation of
different competences is constitutionally entrenched and it cannot be changed by
ordinary legislation.

By contrast, devolution in the UK has been achieved by the UK Parliament enacting the
devolution legislation—Acts of Parliament—and Parliament can amend or repeal those
statutes. The UK’s devolution arrangements thus enjoy no hard-edged or formally
entrenched constitutional legal security. The UK Parliament retains its ultimate
lawmaking power over all matters. However, this is subject to two important
qualifications. First, devolution benefits from overwhelming political security, so much
that it is virtually inconceivable that the UK Parliament would unilaterally undermine or
abolish devolution. That would be a brave, and extremely foolish, thing to do. Second, in
2016–17, the UK Parliament legislated to give the devolved institutions in Scotland and
Wales the status of being permanent parts of the UK’s constitutional arrangements. The
devolved institutions could only be abolished following a decision of the people of
Scotland and Wales voting in a referendum for their abolition. We consider the
importance of these provisions in section 4.3.4.
Fourth, in most federalist systems, the courts have an important role in resolving
disputes between the different levels of government. An important feature of the US
system is that when a dispute arises between the federal government and the states or
between a state and an individual, the courts and the US Supreme Court are called
upon to adjudicate upon the matter, for instance, to decide whether the state
concerned has acted within or outside its powers, that is, whether or not it is
constitutional. The US Supreme Court therefore acts as a constitutional court and its
decisions are final. By contrast, the UK has a quite different constitutional context. The
highest form of law is an Act of Parliament made by the UK Parliament. By virtue p.
364↵of the principle of parliamentary sovereignty, the role of the UK courts is limited to
that of interpreting and applying primary legislation. And primary legislation can be
amended. This constitutional framework significantly determines the role of the UK
Supreme Court when it adjudicates upon devolution disputes between the UK
government and the devolved governments.

4.2.2 Federalism for the UK?

The UK’s territorial arrangements do not currently conform to a federal model. On the
other hand, the UK is certainly not the type of unitary state that existed before the late
1990s. The UK’s current piecemeal, ad hoc arrangements are best described as
‘asymmetrical quasi-federalism’, an awkward phrase that confirms the unusual
constitutional pattern and status of the UK’s territorial constitution. This is all the result
of a typically pragmatic constitutional approach and compromise. Should the UK go
ahead and fully adopt federalism? Is the UK now becoming a proper federal system?
Could it even do so?

There might be advantages in the UK adopting federalism. For instance, a federalised

UK constitution might be better able to accommodate constituent nations’ desires for
(at least) a high degree of autonomy within the UK through a more secure constitutional
settlement. Such a constitution would also be neater, in the sense that all four nations
would be in equivalent positions in respect of one another and in respect of the federal
tier of government. There is no accepted model of how federalism would work in the UK
and what it would actually mean and involve. Federalism would almost mean having a
written constitution and the end of the orthodox principle of parliamentary sovereignty.
It would also require a more legalistic structure and demarcation of the responsibilities
of the various governments and legislatures in a written constitution. Further, the UK
government would have to accept unprecedented constraints on its powers and a
significant reordering of its constitutional position.

At this point, anyone who has read this book so far is now likely to be—to put it mildly—
at least somewhat sceptical that these things could really happen. The UK Parliament
and government will be unwilling in the extreme to reform the entire structure of the UK
constitution for the sake of tidiness, especially when there is no compelling political
need to do so. That is just not the way that the UK constitution works and evolves. But
who knows? It could potentially happen. We say this not just because the future is
always uncertain, but also because it is widely accepted that the UK’s territorial
constitution is in crisis. Crises create uncertainty; they also make it possible for
unexpected and unpredictable things to happen.

4.2.3 The UK’s territorial constitutional crisis

To say that the UK’s territorial constitution is in crisis does not imply that there is a
sudden emergency which can be mended through a quick fix. Instead, there has been a
long, slow-burn accumulation of difficulties and differences over decades. This crisis is
always there in the background rumbling along; occasionally, it comes to the p.
365↵fore and becomes far more pronounced.131 The sense of crisis has been most
acute in relation to Scotland. The fact that the 2014 Scottish independence referendum
was so closely fought illustrates and confirms the fragility of Scotland’s place in the UK.
Matters have since been further exacerbated and accentuated by Brexit and the more
muscular unionism of the UK Conservative government.

During the 2014 referendum, the Scottish people were promised by the then UK
Conservative government that the UK would remain a member state of the European
Union. In the 2016 Brexit referendum, Scotland voted remain, but the UK has now left
the European Union. This has generated feelings of betrayal and resentment north of the
border (ie in Scotland) which are not going to subside any time soon, if at all. Brexit has
raised a whole set of complications, including about trade in Northern Ireland. It is
possible that at some point in the future there will be a ‘border poll’ in Northern Ireland
about whether it should leave the UK and become part of the Republic of Ireland.
Around half of the population in Northern Ireland are republicans and would likely vote
to leave the UK.

Even Wales, the country most integrated with England, has increasingly voiced
dissatisfaction with its devolution arrangements. In 2022, the Independent Commission
on the Constitutional Future of Wales recognised that devolution had been a major step
forward for Welsh democracy, ‘but the current settlement has been eroded by decisions
of recent UK Governments particularly in the context of Brexit. The status quo is not a
reliable or sustainable basis for the governance of Wales in the future.’132 The
Commission identified ten immediate pressure points, including: the instability of the
devolution settlement; the fragility of intergovernmental relations; the absence of
leadership on the Union from the UK government; constraints on policy and delivery at
the boundaries of the settlement; problems with the system for financing devolution;
restrictive budget management (the ability of the Welsh government to manage its
budget for the long term is constrained by detailed Treasury controls); and others.
Tellingly, the final problem was termed ‘the constitutional conundrum’: the supremacy
of the Westminster Parliament means that any change to the current arrangements
must be initiated by the UK government and agreed by Westminster. Whatever case for
change is made, it is open to the UK government to water it down or ignore it altogether.

A significant part of the reason for this deepening sense of emerging crisis has been the
more muscular Unionist approach of the Conservative government since 2019 in
addition to Brexit and challenges during the Covid pandemic.133 Post-Brexit p.
366↵legislation—in particular the Internal Markets Act 2020—has enabled the UK
government to intervene in areas previously regarded as being within the devolved
competence of the devolved legislatures. The post-Brexit governance landscape has
jarred with previous devolution arrangements. Intergovernmental relationships between
the UK government and the devolved governments have become more adversarial and
less collaborative. This has in part arisen because of their very different political
complexions, but the approach of the UK government has added to it. In 2020, the then
Prime Minister, Boris Johnson, made an unguarded comment that devolution had been
‘a disaster north of the border’ (ie in Scotland).134 This only poured fuel on the fire. The
lack of a collaborative approach by the UK government has exacerbated matters
unnecessarily. It has reinforced the previously growing sense of crisis in the territorial
constitution long before Brexit, Covid, and the more muscular Unionism.
Commentators have noted that the ‘forward march of devolution has been
halted’.135 Others have been more pessimistic and highlighted ‘the death of
devolution’.136 Despite being denied a second independence referendum, the Scottish
Nationalist government has not been at all dissuaded. In 2023, the Scottish government
published a series of policy documents on its plans for Scotland after independence.
Yet, such plans could happen only if Scotland voted for independence.

We have considered the situation in the three smaller nations. Things seem little better
from an England-based unionist position. The Westminster-based and cross-party
Constitutional Reform Group has argued that the UK risks disintegration—especially
following the Brexit vote—unless there is a new constitutional settlement guaranteeing
the rights and autonomy of each constituent nation and region within a reformed UK
under a new Act of Union.137 A former Conservative government Minster, David
Lidington, has argued that the existence of the Union itself is now under stronger
challenge than ever before.138

We consider later the possible responses to the crisis of the territorial constitution and
the likely way forward. However, it is first necessary to consider related matters and
developments: the constitutional position of the devolved institutions; the Sewel
convention; the ‘permanence’ provisions; and the role of the UK Supreme Court in
adjudicating upon disputes concerning devolution.

4.3 The territorial constitution—politics and law

The emergence and development of devolution reflects one of this book’s themes: the
multilayered nature of the constitution. It intersects with another of our key themes—
namely, the relationship between political and legal modes of constitutionalism, and p.
367↵the extent to which the direction of travel is towards the latter. We saw in the
previous section that the UK’s territorial constitution cannot currently be characterised
as straightforwardly federal. But we also noted that federalism is a relatively broad
concept, in that a range of constitutional arrangements fall under its umbrella. Whether
a constitution is federal in nature is thus not a binary question, but a question of degree.
And if one of the characteristics of federalism is that (what are in British vernacular)
devolved institutions enjoy a degree of constitutional security, the extent to which the
UK’s constitution has become federalised turns on the extent of the constitutional
security with which devolution is invested.

The degree of legal security enjoyed by the states in the USA is clearly high, and sits in
contrast with the situation in which Scotland, Wales, and Northern Ireland have found
themselves—at least until very recently—in the UK. However, the fact that, as a matter
of strict law, the UK Parliament can unilaterally abolish or radically change the
devolution settlements is only part of the story. Indeed, in the absence of exceptional
circumstances, it would be nigh on impossible for it to do either. Here, then, we
encounter a familiar characteristic of the UK’s constitution as a political constitution—
that is, the disjunction between the positions prescribed by legal theory, on the one
hand, and real-world politics, on the other. It is often the case that the gap between
these two positions is bridged by constitutional conventions. Devolution is no
exception.

4.3.1 The Sewel convention

It was recognised in the early days of devolution that it would be wholly contrary to the
spirit of the new constitutional arrangements if the UK Parliament interfered unilaterally
in devolved matters, that is, those areas within devolved competence. It was therefore
accepted that the UK Parliament should not normally legislate on devolved
matters unless the relevant devolved legislature consents. Thus a political agreement—
a constitutional convention, known as the ‘Sewel convention’139—emerged, regulating
the exercise of the Westminster Parliament’s legal sovereignty and rendering its practice
consistent with the spirit of devolution.

Indeed, convention is important not only as regards the relationship between

Westminster and the devolved legislatures, but also in relation to how the various
administrations relate to one another. Devolution has radically changed the UK system
of government by creating new seats of political and administrative authority in
Edinburgh, Cardiff, and Belfast, all of which must relate to the UK government and, to
some extent, one another. It might therefore seem surprising that, as Rawlings has
noted, ‘almost nothing is said in the [devolution] legislation about the structures and
processes of intergovernmental relations’, thus creating a ‘vast constitutional
space’.140 In the absence of law, that vacuum has been filled by ‘concordats’, which p.
368↵are best thought of as instant conventions: whereas conventions traditionally
emerge implicitly through long practice, concordats are explicit, but legally non-binding,
agreements entered into between political institutions.141 A multilateral concordat
known as the Memorandum of Understanding142 sets out in general terms how the UK
and devolved governments should relate to one another, while myriad bilateral
concordats lay down the ground rules for relationships between particular central and
devolved government departments. This heavy reliance on extra-legal agreements
further illustrates the political dimension of the UK constitution generally, and its
devolution settlement in particular. These agreements also rely upon goodwill between
the UK and devolved governments, communications, and collaboration. It is apparent
that the attitudes of various UK governments have varied. Overall, Brexit and then Covid
have placed considerable strains on the relationships.

So much for intergovernmental relations. What of interparliamentary relations? That is,

relations between members of the UK Parliament and the devolved legislatures. Such
relationships, so far as they even exist, are quite rudimentary and embryonic at best.
They are informal, ad hoc, and exist usually between committees and officials.143 It has
been recommended that a new structure be devised for more effective
interparliamentary relations through the creation of an interparliamentary forum.144 This
would hold to account the bodies involved in intergovernmental relations (the UK and
devolved governments). The interparliamentary forum would also enable wider issues
of devolution to be discussed by members of the five legislatures. It could also improve
communication and understanding of the devolution settlements and the respective
roles of the devolved legislatures within all the parliamentary bodies.

4.3.2 The law of devolution

In addition to political constitutional conventions, there is also a substantial legal

dimension. The devolution legislation amounts to a complex legal code setting out in
often painstaking detail the powers—and the limits of the powers—of the devolved
institutions. Moreover, as we have noted, the courts have a role in enforcing such limits.
The legal dimension of the territorial constitution has been augmented. Whereas it has
always been the case that devolution settlements set out legal, judicially enforceable
limits upon the powers of the devolved institutions, it has, at least until recently, been
axiomatic that there are no corresponding limits upon the powers of the UK Parliament.
In this respect, devolution is lopsided in a way that federalism is not, because the
‘central legislature’—that is, the UK Parliament—has, as a matter of law, held all the
cards.

p. 369↵For instance, a devolved government cannot challenge an Act of Parliament

enacted by the UK Parliament on the ground that it infringes the devolution settlement
because there is no higher law setting out the devolution settlement. Those settlements
are laid down in primary legislation enacted by the UK Parliament which is sovereign.
Further, because of parliamentary sovereignty, the UK Parliament can, if it wants,
legislate contrary to the devolution legislation by either expanding or limiting the powers
of the devolved competence. However, both the Scotland Act 2016 and the Wales Act
2017 changed—or at least appeared to change—this position in ways that we examine
in the next two sections.

4.3.3 Legislation on devolved matters

Can the UK Parliament legislate on matters within the legislative competence of

devolved legislatures? There are three especially important constitutional provisions in
the devolution legislation to consider.

First, the devolution legislation explicitly provides that the conferral of legislative
competence on the devolved legislatures ‘does not affect the power of the Parliament of
the United Kingdom to make laws’ for Scotland, Wales, and Northern Ireland.145 In other
words, the UK Parliament has unlimited legislative power over the entirety of the UK
irrespective of devolution. According to the Supreme Court, this provision makes it clear
that the UK Parliament remains sovereign; its legislative power in relation to Scotland,
Wales, and Northern Ireland is undiminished. The provision ‘reflects the essence of
devolution: in contrast to a federal model, a devolved system preserves the powers of
the central legislature of the state in relation to all matters, whether devolved or
reserved’.146 There is no constitutional or legal restriction on the UK Parliament enacting
legislation on matters within the devolved competence of the Scottish and Welsh
Parliaments and the Northern Ireland Assembly.

Second, the Scotland Act 2016 and the Wales Act 2017 state that ‘the Parliament of the
United Kingdom will not normally legislate with regard to devolved matters without the
consent’ of the Scottish Parliament and Welsh Parliament.147 In other words, the Sewel
convention is no longer just a political constitutional convention. It has now been put
into primary legislation.

Does this transform the Sewel convention into a legal constraint on the power of the UK
Parliament to legislate on matters within the devolved competence of the Scottish and
Welsh Parliaments? Is the Sewel convention legally enforceable by the courts? The
answer is ‘no’.

The Sewel convention remains a matter of politics; it is not legally enforceable by the
courts. The UK Supreme Court has held that the references to the Sewel convention in
the devolution legislation do not—and did not seek to—convert that convention into a
legal rule that could be interpreted and enforced by the courts. Instead, the UK p.
370↵Parliament was recognising the Sewel convention for what it is, an important
political convention, and declaring it to be permanent feature of the relevant devolution
settlement.148 As the Supreme Court in Miller I noted, judges are ‘neither the parents nor
the guardians of political conventions; they are merely observers’.149 While the courts
can recognise the operation of a political convention, they cannot give legal rulings on
its operation or scope, because those matters are determined within the political world.
It is not for the courts to determine the validity of conventions or how they operate. The
court noted that in reaching the conclusion that the Sewel convention was not legally
enforceable, it ‘did not underestimate the importance of constitutional conventions,
some of which play a fundamental role in the operation of our constitution. The Sewel
Convention has an important role in facilitating harmonious relationships between the
UK Parliament and the devolved legislatures. But the policing of its scope and the
manner of its operation does not lie within the constitutional remit of the judiciary,
which is to protect the rule of law.’150

There are compelling legal reasons for this view. It is very far from clear that the
devolution legislation gives any legal effect to the Sewel convention. All that the
legislation says is that it is recognised that Westminster will not normally legislate on
devolved matters without the agreement of the Scottish Parliament or the Welsh
Parliament. It follows, then, that even if it were possible for the UK Parliament to limit its
own power, it has not unambiguously sought to do so. The devolution legislation does
not say that Westminster cannot or will not legislate on devolved matters absent
Scottish or Welsh consent. Nor does the legislation say that the Sewel convention
has legal force. Rather, the legislation amounts to a political statement—albeit in a legal
text—of the UK Parliament’s acknowledgement of the existence of a conventional
restraint upon its own power. However, the restraint remains just that: one that is based
in convention, and which therefore has no legal force.

There are also compelling reasons of legal policy why the Sewel convention is not
legally enforceable. The most obvious reason is that making that convention legally
enforceable would inevitably draw the UK Supreme Court deep into intensely political
disagreements between the UK and devolved institutions. The critically important word
in the Sewel convention is ‘normally’; the UK Parliament will not normally legislate with
regard to devolved matters without the consent of the relevant devolved legislature. The
Sewel convention implies that when the UK Parliament legislates without the consent of
the devolved legislatures, it is because the situation concerned is an abnormal one.
Turning the convention into a legally enforceable rule would inevitably require the court
to define what ‘normally’ means and the criteria to be applied when determining this. It
would also require the court, as a matter of law, to determine whether or not the
decision of the UK government and the UK Parliament to legislate without the consent
of the devolved legislature was legally normal or abnormal. This would inevitably turn
political disputes into legal ones—but they would also remain inherently political
disputes. This would deeply politicise the UK Supreme Court and the meaning of the
word ‘normally’.
p. 371↵If the Supreme Court ruled that a particular Act of Parliament had been enacted
without the consent of the devolved legislatures and found that the reasons of the UK
government and Parliament for this ‘abnormality’ were inadequate and improper, then
the court would in effect be limiting the power of the UK Parliament to legislate. This
would be a significant inroad into parliamentary sovereignty. It would also be a political
intervention. Alternatively, if the Supreme Court always ruled that the UK Parliament
could legislate without the consent of the devolved legislatures when those legislatures
argued strenuously that their consent should have been requested and granted, then
the court’s independence and impartiality would be questioned. Either way, the court
would be placed in a highly political situation. In any event, there is no evidence that the
UK Parliament intended to make the Sewel convention legally enforceable. It is simply
too much to base a system of constitutional adjudication upon a single word, ‘normally’.
For all of these reasons, really the only answer would be for the Supreme Court to hold
that the Sewel convention is a political convention and therefore not a legal matter that
it could adjudicate upon. And that is precisely what the Supreme Court has done.

Of course, there are political problems with this approach. In particular, the Sewel
convention poses little practical difficulty for a UK government with a Commons
majority. For instance, the European Union (Withdrawal Agreement) Act 2020 was
enacted by the UK Parliament to give legal effect to the Withdrawal Agreement setting
out the terms on which the UK would go on to exit the EU. All three of the devolved
legislatures refused their consent. In response, the leader of Scottish Nationalist MPs
complained to the Prime Minister that devolution was under attack and powers were
being grabbed back to Westminster without any respect to the devolution settlement:
‘Why are the UK Government ignoring the principle of consent for our national
Governments?’ The Prime Minister, Boris Johnson, retorted that ‘it is no part or
implication of the Sewel convention to break up the oldest and most successful
political union in the world’.151 That was clearly an inadequate response, but it affirms
that the relationship between the UK and devolved institutions is political rather than
legal.

4.3.4 The continued existence of the devolved institutions—the ‘permanence’

provisions

The third important constitutional provision in the devolution legislation is the

‘permanence’ provisions. The Scottish and Welsh devolution statutes now recognise
that the devolved institutions are ‘permanent’ parts of the UK’s constitutional
arrangements.152 The purpose of these statements is ‘to signify the commitment of the
Parliament and Government of the United Kingdom’ to the devolved institutions.153 The
‘commitment’ as to permanence is accompanied by a ‘declaration’ that p. 372↵the
devolved institutions ‘are not to be abolished except on the basis of a decision of the
people of Scotland or Wales voting in a referendum’.154 These provisions are amongst
the strongest form of entrenched legislative ‘locks’ possible in a constitution based
upon parliamentary sovereignty.

Do these provisions legally prevent Westminster from abolishing the Scottish or Welsh
institutions without the consent of the Scottish or Welsh people expressed via a
referendum? In other words, has the UK Parliament successfully bound itself? There are
two reasons why we might be doubtful about this.

First, the ‘permanence’ provisions are not framed in clear terms that demonstrate that
the UK Parliament intended to restrict its own legal powers. The purpose of the
provisions is merely to ‘signify’ the UK Parliament and government’s ‘commitment’ to
the Scottish and Welsh institutions. Leaving to one side the difficulty of treating
legislation enacted by Parliament as evidence of the government’s position, it is plain
from this wording that the provisions’ purposes do not explicitly extend to disabling the
UK Parliament from abolishing the Scottish and Welsh institutions. It is also worth
noting that nowhere do the ‘permanence’ provisions state that the UK
Parliament cannot abolish the Scottish or Welsh institutions without a referendum.
Rather, it is merely ‘declared’ that they ‘are not’ to be abolished without such support.
When it makes rules, Parliament does not normally ‘declare’ that something is or is not
to happen; it usually simply states what the legal position is. This creates room for
doubt about whether these provisions actually go so far as to seek to impose a legal
restriction on the UK Parliament.

Second, even if that were the ‘permanence’ provisions’ aim, that would raise the further
question: can Parliament actually impose such limits upon itself? We are back again to
parliamentary sovereignty. The ‘permanence’ provisions could be examined by
reference to the ‘manner and form’ view considered in Chapter 6. On this analysis, we
would understand support expressed through a referendum to be a condition precedent
to the enactment of UK legislation abolishing the Scottish and Welsh institutions.
However, we saw in Chapter 6 that it is not certain whether such conditions, if
Parliament seeks to impose them, will actually bind it. It is certainly not clearly
established that such conditions, if unfulfilled, would invalidate legislation enacted in
breach of them, although, as we noted in Chapter 6, there is some limited support for
the imposition of such binding restrictions in the Jackson case.155 Even so, the further
question would arise whether the provisions setting out the referendum requirement
could themselves be repealed without a referendum—a question to which the answer,
again, is unclear.156

p. 373↵What, then, is the effect of the ‘permanence’ provisions? It might be thought

that—like the provisions concerning the Sewel convention—they contribute to the
political restraints that operate upon Westminster, by making it more difficult,
politically, for it to abolish the Scottish or Welsh institutions without first securing the
consent of the Scottish or Welsh people. However, the prospect of Westminster
attempting to do that is, in any event, non-existent. The political consequences would
be catastrophic. If, for instance, the UK Parliament even attempted to abolish the
Scottish government and Parliament against the wishes of the people of Scotland, it
would, in effect, break-up the UK. The political disincentive to unilateral abolition by
Westminster of the Scottish and Welsh institutions was therefore already so
overwhelmingly strong that it is hard to see what the ‘permanence’ provisions could add
in this respect.

But the ‘permanence’ provisions are highly significant in terms of their symbolic
constitutional effect—if viewed as a token of good faith on the part of the UK
Parliament. Such symbolism is important. If nothing else, the ‘permanence’ provisions
demonstrate just how far devolution has moved on. They underline the fact that the
political and constitutional reality of the modern territorial constitution is that power
has been devolved and dispersed across the UK in ways that are, in all practical senses,
irreversible. Constitutional law must recognise that basic political reality. In formal
terms, parliamentary sovereignty remains a constitutional principle, but as a matter of
substance, there are significant political limitations which highly constrain how it works
in practice.

4.3.5 The courts and devolution disputes

We now consider the role of the courts in deciding disputes concerning devolution
between the UK and devolved governments. Given the preceding discussion, it might be
thought that the courts have little, if any, role to adjudicate on the Sewel convention or
the ‘permanence’ provisions.

That remains the case. However, devolution also created a new and significant
constitutional space for the UK Supreme Court to engage in constitutional adjudication
about the lawmaking powers of the devolved institutions and how they are exercised.
The devolution legislation specifically recognises the need for and makes special
provision about adjudication concerning devolution, in particular the constitutionality
of legislation enacted or to be enacted by the devolved legislatures. Under the
devolution legislation, an Act of a devolved legislature is not law so far as it is outside
the legislative competence of that devolved legislature.157 In other words, the courts can
and do rule on the lawfulness—constitutionality—of devolved legislation enacted by
the devolved legislatures to determine whether or not that legislation is within the scope
of that legislature’s devolved competence. This is judicial constitutional review of
devolved legislation.158 Of course, this does not arise in relation to legislation enacted
by the UK Parliament, but only in relation to statutes enacted by the devolved p.
374↵legislatures, although this is itself a very significant development that can be
intensely controversial in political, legal, and constitutional terms.
The typical situation is that a devolved legislature introduces or enacts legislation
purportedly within its legislative competence. But there is a dispute about whether the
Act would be either fully inside the devolved competence of that Parliament or whether
the Act affected matters outside that devolved competence and therefore within the
province of the UK Parliament. It is axiomatic that there is a hierarchical relationship
here. The devolved legislatures are constitutionally important, but they are not
sovereign, like the UK Parliament. In such situations, the real underlying dispute will be
between the UK government and the relevant devolved government, such as the
Scottish government, which may well have very different political, legal, and
constitutional views on the matter.

There are mechanisms built into the devolution schemes to try to prevent such
problems from arising by ensuring that the devolved Parliaments stay within their
legislative competence. The devolved Minister or member of the devolved legislature
who introduces a Bill must state that its provisions are within the devolved legislature’s
powers.159 There is also an independent requirement that the relevant Presiding Officer
states her opinion as to the competence of the Bill.160 There are also communications
between the relevant Ministers and officials (including government lawyers).

These mechanisms are important, but they will not always be sufficient. Disputes will
still arise. They will be intrinsically political and constitutional disputes. They pit the will
of an elected and democratic devolved legislature against that of the UK Parliament. A
dispute-resolution process is therefore required. It must be independent and impartial.
That process must also be authoritative in two senses. It must make legally binding
decisions. It must also be authoritative in the sense that it produces reasoned and
justified decisions. Given the importance of the issues at stake, the only body that can
consider and decide such disputes is the UK Supreme Court.

Ultimately, the Supreme Court decides whether a devolved legislature—the Scottish

Parliament, the Welsh Parliament, or the Northern Ireland Assembly—has legislated
within or outside its legislative competence.161 The devolution legislation makes special
provision for judicial resolution of ‘devolution issues’—that is, issues as to whether
devolved bodies are acting or proposing to act beyond their legal competence—with
final appeals on such matters ultimately lying to the Supreme Court.162 Such questions
may arise in the course of normal litigation,163 can be the subject of judicial review
challenges to the legality of devolved legislation,164 or can be referred to the courts by
the Attorney General.165 It is also important to note that the p. 375↵courts can invalidate
devolved legislation which infringes the European Convention on Human Rights
whereas the courts can only issue declaration of incompatibility against UK
legislation.166 Devolution has, then, opened up a distinctive role for the Supreme Court
in deciding constitutional disputes about the operation of the multilayered constitution.
Alongside human rights cases, devolution cases reinforce the sense of the UK Supreme
Court being a constitutional court.

The Supreme Court has elaborated the main legal principles that it applies to determine
devolution disputes. These are as follows.167 The powers of the devolved legislatures in
Scotland, Wales, and Northern Ireland are delimited by the devolution legislation, which
has been enacted by the UK Parliament. These legislatures are democratically elected.
They have a mandate to make laws within the limits of their legislative competence. But
they do not enjoy the sovereignty of the UK Parliament. It is not for the Supreme Court to
form or express any view on questions of policy, which are the responsibility of elected
representatives and in which the wider civil society has an interest. The court’s role is to
determine as a matter of law whether a devolved Bill or statute is within the legislative
competence of the relevant legislature. The scope of legislative competence is to be
found in the devolution legislation. These statutes must be interpreted in the same way
as any other statute. The court will have regard to the aim of achieving a constitutional
settlement and recognises the importance of giving a consistent and predictable
interpretation so that the devolved legislatures have a coherent, stable, and workable
system within which to exercise their legislative power. This is achieved by interpreting
the devolution legislation according to the ordinary meaning of the words used.168

How, then, are those principles applied by the Supreme Court in practice when
determining disputes about legislative competence? There have been several cases
concerning devolution.169 We will consider two of them.

In the UNCRC case, two Bills introduced by the Scottish Parliament sought to
incorporate international treaties into Scottish law.170 The two treaties were the United
Nations Convention on the Rights of the Child and the European Charter of Local Self-
Government. The two Scottish Bills would have required the courts to interpret primary
legislation (including UK legislation) compatibly with the two treaties. p. 376↵The Bills
would also have enabled the courts to issue declarations of incompatibility against
legislation contrary to the two treaties. The UK government objected to the two Bills on
the ground that they were outside legislative competence.

The Supreme Court unanimously held that the relevant provisions of the Bills would
make conditional the ability of the UK Parliament to enact legislation for Scotland. The
Scottish Parliament could not enact Bills that would give the courts the power to make
declarations of incompatibility against UK legislation if it failed to meet a legal standard
embodying international obligations which the UK Parliament had itself chosen not to
give legal effect in UK law. In essence, the Scottish Bills would have made the UK
Parliament’s power to make laws for Scotland conditional, thereby undermining the
parliamentary sovereignty of the UK Parliament. The Supreme Court therefore ruled that
the relevant provisions of the two Bills were outside the legislative competence of the
Scottish Parliament and unlawful. The decision has been criticised for adopting a
maximalist approach of the provisions in the devolution legislation which preserve the
sovereignty of the UK Parliament thereby severely limiting the power of the Scottish
Parliament.171 As Cowie has noted, the approach of the Supreme Court suggested ‘a
thicker than usual conception of parliamentary sovereignty’ of the UK Parliament when
adjudicating on a dispute between the UK Parliament and the Scottish Parliament.172

Another high-profile and constitutionally significant case concerned the proposed

Scottish Independence Reference Bill (2022).173 The Scottish government wanted to
know whether the Scottish Parliament had the power to enact a Bill that would enable a
second referendum on Scottish independence to be held. The 2014 independence
referendum had been held with the agreement of the UK government. Consent for a
second independence referendum has been refused by the UK government. The
Scottish Nationalist government has long wanted Scotland to become independent. As
noted earlier, the argument for Scottish independence was strengthened by Brexit. The
Scottish government wanted to proceed with a second independent referendum in a
lawful and constitutional way, but the UK government has refused permission for a
second independence referendum. Did the Scottish Parliament have the power
unilaterally to legislate for a second independence referendum, without the consent of
the UK government and Parliament? This was both a political and a legal matter.

Under the Scotland Act 1998, the Scottish Parliament cannot legislate on matters
explicitly reserved to the UK Parliament. Two such reserved matters are ‘the Union of
the Kingdoms of Scotland and England’ and ‘the Parliament of the United Kingdom’. The
Supreme Court concluded that a Bill which made provision for a referendum on
Scottish independence—and therefore ending the Union—concerned the Union of
Scotland and England. The court explained that a lawfully held referendum would not
be ‘merely an exercise in public consultation or a survey of public opinion’ but p. 377↵‘a
democratic process held in accordance with the law which results in an expression of
the view of the electorate on a specific issue of public policy on a particular
occasion’.174 Such a referendum would ‘undoubtedly be an important political event’
and its outcome either way ‘would possess the authority, in a constitution and political
culture founded upon democracy, of a democratic expression of the view of the Scottish
electorate’.175 It would clearly have important political consequences relating to the
Union and the UK Parliament. The court therefore held that the Bill related to the
reserved matters of the Union of Scotland and England and the sovereignty of the UK
Parliament. Accordingly, the Bill was outside the legislative competence of the Scottish
Parliament and unlawful.

The consequence of the ruling was that the Scottish government and Parliament cannot
on their own pursue a legal means of having a second referendum on Scottish
independence. The consent of the UK government is required. The reaction to the ruling
from the then Scottish First Minister, Nicola Sturgeon, was that ‘Scottish democracy will
not be denied’ and that the ruling confirmed that ‘the notion of the UK as a voluntary
partnership of nations, if it ever was a reality, is no longer a reality’.176

The next best strategy is then a political one, for the Scottish government to try to force
the hand of the UK government through political means by using the next UK general
election as a de facto referendum. For instance, the Scottish National Party could fight
that election on a single issue: Scottish independence. If it won, then any refusal by the
UK government for a second referendum could be portrayed as defying the popular view
of the Scottish people. It remains to be seen what happens. The issue is not going away.
All of which prompts wider and deeper questions about the current state of devolution
and the future of the UK which we consider in the next section.

But first, what can we say about these two devolution cases? Obviously, there are direct
political and legal issues about the allocation of political power. However, underlying
such matters there is scope for argument and discussion for different understandings of
constitutional law from the viewpoint of the different countries within the UK and from
different perspectives. For instance, it has been argued that the Supreme Court has
tended to expound the most orthodox, ‘very traditional, and rather blunt, understanding
of the principles of British constitutional law, including Parliamentary
sovereignty’.177 This style of orthodox constitutional approach does not necessarily
reflect the nuances and complexities of the devolved countries’ constitutional
traditions, particularly those of Scotland and Northern Ireland. For instance, in 1953, a
senior Scottish judge noted that ‘The principle of the unlimited sovereignty of
Parliament is a distinctively English principle which has no counterpart in Scottish
constitutional law.’178

p. 378↵More recently, the Welsh government has stated:

Whatever its historical origins, the United Kingdom is best seen now as a voluntary
association of nations taking the form of a multinational state, whose members share
and redistribute resources and risks amongst themselves to advance their common
interests. Wales is committed to this association, which must be based on the
recognition of popular sovereignty in each part of the UK; Parliamentary sovereignty as
traditionally understood no longer provides a sound foundation for this evolving
constitution.179

This presents a more pluralistic and consensual understanding of the constitution

compared with the traditional principle of parliamentary sovereignty in which power is
seen as being concentrated at the centre and is exercised in a top-down manner. By
contrast, the Lords Constitution Committee has reasserted a more traditional notion of
parliamentary sovereignty. The Committee opined that while there might appear to be a
difference between the doctrine of parliamentary sovereignty and ‘the rather more
elusive concept of popular sovereignty’, it was ‘not convinced that there is much
practical distinction between them. The UK Parliament’s legislative supremacy
ultimately depends for its political legitimacy on the consent of the people, as
expressed in UK general elections.’180

By highlighting these different underlying conceptions of ‘sovereignty’, we do not imply

that the decisions of the Supreme Court were legally wrong. The simple point is that it
should not necessarily be assumed that there is just one single objectively correct
understanding of the constitution. Instead, there are different constitutional traditions
within the UK, including distinctive Scottish and Welsh constitutional traditions in which
sovereignty does not come from the UK Parliament, but from the Scottish and Welsh
people.181 The key underlying ideas here are consensus and popular sovereignty, not
parliamentary sovereignty. These different ways of thinking about constitutionalism
depend upon the underlying political viewpoints and preferences.

4.4 Devolution and the viability and future of the Union

We now consider the future of the UK. We have already highlighted the UK’s territorial
constitutional crisis. Ever since devolution got under way in the late 1990s, it has driven
the development of, and has fundamentally reshaped, the UK constitution. During that
time, a great deal of the focus in this area has been, perhaps understandably, on
devolution itself—a tendency that has perhaps resulted in insufficient attention being
paid to the Union: that is, to the aspects of the constitution that are concerned with the
bonds between the UK’s constituent nations, and with the UK tier of governance that
coexists with the new devolved governments. One concern—at least from the
perspective of those who wish the UK to continue as a single state—is that devolution
might exert such strong centrifugal forces as to make the Union unviable, thus p.
379↵making its eventual disintegration inevitable. The question then becomes whether
the UK’s constitutional arrangements exert countervailing centripetal forces that are
sufficient to hold the Union together. This is not to suggest that the Union and the
devolved nations should be perceived as sitting in tension, or in competition, with one
another. Rather, the question is about striking a balance between the different forces
that are acting on the Union so as to enable the UK to remain a viable state whilst
enabling its constituent nations to enjoy the benefits that flow from significant
devolution of power.

These questions were addressed by the House of Lords Constitution Committee in a

major report published in 2016.182 The Committee argued that the Union, in terms of the
ties that bind it together and the benefits it brings, can be grouped under five headings:
‘economic’, ‘social’, ‘political’, ‘cultural’, and ‘security and defence’. It said, however,
that the Union was ‘under threat’, that the UK government needed ‘fundamentally to
reassess how it approaches issues relating to devolution’, and that successive UK
governments have been guilty of an ‘inattentive approach to the integrity of the Union’. A
fundamental difficulty identified by the Committee was the tendency of power to be
devolved to Scotland, Wales, and Northern Ireland in what it called ‘an ad hoc,
piecemeal fashion’. This, it said, showed that the UK government had ‘taken the Union
for granted’ and had failed properly to consider the ‘cumulative impact’ of devolution on
the integrity of the Union. In effect, the Committee concluded that there had been a
fundamental failure to address the balance between the centrifugal and centripetal
forces acting upon the Union, that the former were being allowed to predominate
unchecked, and that this posed an existential risk to the UK as a state. The Committee
said that a renewed focus should be placed on the Union itself, and that steps should
be taken to identify the core functions that must remain at a UK level. The devolution of
any additional powers, it concluded, should be viewed in the light of those
considerations, with powers being devolved only to the extent that that would be
compatible with the ongoing viability of the Union itself.

The tale of the two referendums and their combined aftermath is central. In 2014,
Scotland narrowly voted to remain in the UK, but this was only achieved by Westminster
politicians making a last-ditch vow to grant Scotland more devolution. In the 2016 Brexit
referendum, Scotland voted to remain in the European Union whereas the UK as a
whole voted to leave. The Scottish vote against Brexit has provoked intense concerns
that Scotland has been taken out of the European Union against its will. There are also
indications that Welsh public opinion, traditionally sceptical towards independence, is
changing—or at least becoming less resistant and more ‘indy-curious’. All of this has
coincided with the fracturing of politics as evidenced by the decline of UK-wide political
parties (Conservative and Labour) in Scotland and the dominance of the Scottish
National Party, which won nearly all of the Westminster seats in Scotland in the 2019
general election. There are also more requests from the English regions to have much
more of a say over their futures on the basis that UK central government often imposes
its will from London without p. 380↵appreciating local and regional needs. Against that
background, the need to balance considerations of devolution and Union seems
obvious, but the Constitution Committee’s call for a more thoughtful, systematic, and
holistic approach in this area has gone unheeded, not least because it is fundamentally
at odds with the casual, disjointed way in which constitutional reform is typically
undertaken in the UK.

In this context, the devolved governments have called for wider-reaching changes. The
Scottish Nationalist government wants independence from the UK. Scottish
independence would mean the end of the UK. The arguments for and against the Union
and independence are not really determined by constitutional considerations. They are
political. They also include practical matters. But perhaps above all they are emotive
issues about self-identity and belonging, which cannot be resolved by rational
argument, but by how people feel.
Similarly, the Welsh government would like more powers within a reformed
devolutionary settlement. The interim report of the Independent Commission on the
Constitutional Future of Wales in 2022 indicates the need for very significant,
constitutional changes. As the Commission has asked, is it plausible that the powers of
the Welsh government and Parliament could be entrenched without a UK-wide written
constitution which introduced limitations to parliamentary sovereignty? Is it possible to
restore confidence in the process of intergovernmental relations, given its vulnerability
to changing priorities and personalities within the UK government?183 The answers to
both questions are ‘no’. If so, then both the principle of parliamentary sovereignty and
the culture and attitude of the UK government may need to change. This is a very
challenging agenda. The position in Northern Ireland is altogether different. It has been
without an executive, Ministers, and its Assembly since 2022.

What, then, is the response from unionists? Unionists want to preserve and enhance
the Union, but they are divided on how to do so. One option is to radically reform the
UK’s governance arrangements by, for instance, embracing federalism. Another option
is to patch up what we already have and for the UK government to adopt a more
collaborative approach.

An example of the former option—wholesale radical reform—has been provided by the

Constitutional Reform Group.184 It has proposed that each part of the UK should have
full sovereignty over its own affairs. England, Scotland, Wales, and Northern Ireland
would be separate units, free to deal with their own affairs to the extent that they are
desired, but also able to share functions they considered better discharged at a UK
level. The Westminster Parliament would be reduced to 146 MPs, its role being to
legislate in areas of pooled sovereignty such as common defence and security matters.
To this end, the Constitutional Reform Group has drafted an Act of Union Bill to provide
a renewed constitutional form for the peoples of England, Scotland, Wales, and
Northern Ireland to continue to join together to form the UK and to affirm that they
continue to pool their sovereignty for certain purposes.

This package would involve a seismic change. Whatever its attractions might be, the
neatness of a federal solution would itself come at a price. There are good reasons p.
381↵why the present system is as messy as it is. Confronting the prospect of a federal
UK would require questions about England to be tackled head-on in a way that would go
far beyond the steps that have been taken so far.185 It would also require constitutional
reform at the most fundamental level, not least because the doctrine of parliamentary
sovereignty is flatly incompatible with a federal model in which power is held in balance
as between federal and second-tier institutions, rather than emanating from a single,
all-powerful national institution. Nor is it clear that a federal model can readily be
applied to the UK when one of whose territorial units—England—is so dominant in
terms of population size and economic power. The sheer scale of the project could
easily consume the work of Parliament for years. Yet it would be naive entirely to rule
out the possibility of a federal UK, both because of the pressures operating on the
constitution that have been discussed in this chapter and as a result of the
constitutional shock delivered to the UK by the outcome of the referendum on EU
membership. The UK constitution finds itself today in a state whose fluidity is unusual,
even for a constitution whose flexibility is its best-known characteristic. That said,
however, the path to a fully federal UK would be far from simple, and is certainly not
something that appears to be immediately in prospect.

There is, though, a second unionist approach—gradual reform and better

intergovernmental working. A former senior Conservative Minister, David Lidington has
argued that to overcome the strains that now threaten the unity of the UK, what is
required is a cultural shift in UK politics in favour of partnership and mutual respect,
underpinned by changes to the ways in which the business of both government and
Parliament is undertaken. It is widely agreed that intergovernmental relations between
the UK and devolved governments have deteriorated significantly over recent
years.186 According to Lidington, intergovernmental relations between the UK and
devolved governments ‘are not defined by fixed moments, or set-piece
events’.187 Maintaining good relationships does not ‘begin and end with a meeting in
Downing Street. Rather, they require a culture of ongoing joint working and constant
dialogue between the relevant governments and parliaments that continues in the
background, usually away from the headlines. Such a culture must be grounded in
recognition of two basic principles: that devolution is here to stay and that in a devolved
system both devolved and the UK governments and parliaments have legitimate
responsibilities and competences to act as set out in law.’188 Lidington has therefore
argued that the answer is to develop collaborative working between UK and devolved
governments and legislatures. There also needs to be greater devolution within England.
This might satisfy some, but not all. However, Lidington’s approach is at least consistent
with the long-established constitutional pragmatic practice of ‘muddling through’ as
best as possible within the circumstances.

p. 382↵Given all of this, it seems that the territorial crisis has reached something of a
stalemate, at least for the time being. The UK government holds the constitutional cards
and it is unlikely to, for instance, allow Scotland to have a second referendum. Its
argument is: there was a referendum in 2014 and Scotland voted to remain in the UK. It
is difficult to see how the Scottish government can achieve a second referendum and
therefore possibly Scottish independence when the UK government refuses its consent.
Wide-ranging reforms to devolution and the constitution seem unlikely given all of the
other political and economic challenges that exist. It is impossible to go back to the pre-
devolution position that existed before 1999; that would generate an enormous
backlash. The devolved institutions enjoy significant popular legitimacy. They are
symbolic of Scottish and Welsh national identities and have become deeply embedded
within political and governmental structures.

What, then, will likely happen? The answer in the short-term is probably nothing. As
Morgan and Wyn Jones argue, the UK could well now experience an extended period of
constitutional limbo, stasis, or even purgatory.189 That is, a long period in which nothing
happens and the tensions remain unresolved. This would involve continuing with the
current post-Brexit model of devolution—not because it has any real supporters or
continuing vitality, but simply because there is no alternative model of devolution which
would command the agreement of the various governments involved. This seems likely,
but who knows? Perhaps the only thing that we can really be certain of is that the
countries of England, Scotland, Wales, and Northern Ireland are all deeply connected
with each other both geographically and in terms of their governing
arrangements.190 This will continue to be the case whatever the precise nature of those
governing and constitutional arrangements or what they might become. It seems likely
that the forces and the dynamics underpinning the territorial constitution mean that it
will continue to evolve.

Q Do you favour a shift to a federal system in the UK? Would the sort of ‘big bang’
reform that the adoption of such a model would involve be preferable to the type of
piecemeal, ongoing constitutional change to which the UK’s constitutional
arrangements are presently subject?

Test your understanding of this section by answering Self-test questions 8.4.

5. Conclusion

The governance of the UK is now significantly multilayered. The idea of the UK as a

unitary state governed from the centre belongs to the past. Only as a matter of orthodox
constitutional theory does most governmental power continue to emanate from, p.
383↵and can be recovered by, the UK Parliament. But this sort of one-dimensional
account of the constitution, founded on the doctrine of legislative supremacy, is
becoming less and less sustainable. Our new constitutional reality is one in which the
UK-tier authorities are part of a network of institutions of government, operating at local,
regional, devolved, and state levels. And the assumption that the UK tier holds the
trump card thanks to the sovereignty of the Westminster Parliament is increasingly
misplaced as other seats of government become politically embedded aspects of our
constitutional architecture. The new orthodoxy is that governmental power is now
genuinely diffused among different institutions. Multilayered governance—powers
being shared by different institutions with different roles and operating at different
levels is deeply embedded within the UK constitution.

However, while it is important to recognise the changing dynamics within our

constitution, they must not be exaggerated. The essence of truly multilayered
governance is a situation in which all power does not reside at, or emanate from, the
centre because other institutions exist that enjoy a legitimacy and a status that lend
them a degree of permanence, thus giving rise to a genuinely pluralist constitution. The
UK is no longer a unitary state in which power is concentrated at the centre, but nor is it
a federal system. That conclusion is amply demonstrated by the respective positions of
England and Scotland. England does not have its own devolved legislature or
government. By contrast, there is a continuing debate not about whether Scotland
becomes a state within a federal UK, but whether it should become independent. The
whole issue of devolution and the territorial constitution has become intensely emotive
and complicated by Brexit. There is a strong feeling in favour of the devolved institutions
in Scotland and Wales, which makes them secure features of the UK constitution. This
contrasts sharply with the situations in Northern Ireland and England. In Northern
Ireland, the Assembly has had long periods during which it has been suspended. The
situation has been complicated by Brexit. It remains to be seen what happens. In
England, there is an emerging and developing form of regional devolution based upon
local government and combined authorities. This is better than the previous position,
but it is largely a top-down project dependent upon the agreement of the UK
government. It has an unstable basis and could be halted or reversed.

The story of the UK’s multilayered constitution is therefore an uneven one, but it is
incomplete. The territorial constitution will always remain a work in progress. Indeed,
constitutional change in this area is simply the norm. To the extent that that
demonstrates the UK constitution’s responsiveness to citizens’ wishes, and to the
heterogeneity of those wishes as they exist across and within the four constituent
nations of the UK, such ongoing change might be considered a good thing. There is,
however, a risk that the constant shifting of the pieces of the constitutional jigsaw
obscure our view of the bigger picture, diverting attention from the overarching
constitutional features that are necessary to hold the pieces together. At a time when
the UK’s constituent parts are perhaps more politically disparate than ever before, the
importance of examining that bigger picture cannot be overstated.p. 384↵p. 385↵

Expert commentary Devolution in historical and political context

Stephen Tierney, Professor of Constitutional Theory, University of Edinburgh

Devolution in the UK needs to be understood in light of two historical processes: the

gradual formation of the state, and the more recent rise in sub-state nationalism. The
UK as a state grew out of a series of unions taking place between the seventeenth and
nineteenth centuries. Indeed, we might think of the UK as a union state or a ‘state of
unions’, with the four countries of the union retaining their own national culture (or
‘cultures’ in the case of Northern Ireland) within a larger UK nation. One consequence of
this complexity is that we should not expect a constitutional ‘settlement’. The territorial
or ‘multilayered’ constitution has been evolving since the latter part of the nineteenth
century. It will continue to develop over time in response to the different constitutional
aspirations of the UK’s constituent peoples; the changes to devolution after Brexit
demonstrate this process of continual change.

Since the 1960s, there has been a nationalist revival in Scotland and Wales. Notably the
UK is not alone among western democracies in experiencing pressure for self-
government from its internal nations and regions. Similar assertions of ‘nationhood’
have been made by Quebec within Canada, Catalonia and the Basque Country within
Spain, and Flanders within Belgium. Moves towards constitutional decentralisation
have also been a feature of constitutional change in France and Italy. It is perhaps a
paradox of the past half century that, just as European countries have been coming
together through an integrating European Union, many of the EU’s member states have
also been decentralising through devolved government. A further paradox is that the
devolved governments of the UK have gained significantly greater powers as a
consequence of the UK’s withdrawal from the EU and the return of these powers from
Brussels.

Leaving Brexit to one side, the UK experience in recent decades has been particularly
complex for two main reasons. First, the very different histories of England, Wales,
Scotland, and Northern Ireland have resulted in highly varied constitutional aspirations.
England, the largest nation and hence the most influential, has until recently been
content with a unitary UK. Wales, which is smaller than Scotland and enjoys a greater
population flow with England, has tended to advance quite modest devolution
aspirations, although this has changed as more radical Welsh nationalists have sought
to play catch-up with separatists in Scotland, promoting a similar agenda. Scotland
joined with England at a later date than Wales, and the maintenance of the civic
institutions which were already in place by 1707 is one reason why Scottish nationalists
have in recent times sought a stronger form of self-government. Northern Ireland is the
most complicated case of all; the history of conflict there requiring a carefully tailored
and very specific set of constitutional arrangements.

A second reason why UK devolution is so complex is that constitutional change to the

territorial constitution since 1997 has taken place within the UK’s uncodified or
‘unwritten’ constitution. Unlike most other countries, constitutional change in the UK
can be effected simply by way of Act of Parliament. This has had three important
consequences.

The first is constitutional flexibility. A series of devolution statutes in relation to

Scotland, Wales, and Northern Ireland have each brought about significant
constitutional change often quickly and with little national debate. A second
consequence of the unwritten constitutional context is that it has helped create a
picture of devolution as a never-ending process. In countries with a complicated
amendment process, constitutional change is often a landmark event, occurring
infrequently and only at high-profile ‘constitutional moments’. But in the UK,
constitutional change is easily undertaken. The UK government and Parliament have
frequently been tempted to respond to demands for further change, often for short-term
political reasons. Much of this has been a consequence of vociferous Scottish
nationalism. A knock-on consequence has been an attitude among Welsh nationalists
that Wales should then get further powers in light of Scottish developments.

A third feature is that devolution was introduced (and subsequently developed) for each
of Scotland, Wales, and Northern Ireland by way of separate processes and pieces of
legislation. This has resulted in a system that is highly ‘asymmetrical’. Although
designed to reflect societal and political differences across the UK, this has made the
system very complex. To take a recent example, although Welsh nationalists often look
with envy at the Scottish model, and although one goal of the Wales Act 2017 was to
give Wales a model of devolution similar to that of Scotland, substantial differences still
remain, reflecting the very different models of devolution created in 1998.

Although devolution has been responsive to demands, there are now significant
concerns that the very ad hoc approach to constitutional change has left the territorial
constitution incoherent, imbalanced, and potentially unmanageable. A key problem is
the lack of principled or even strategic thinking. An example is the way in which the
British government reacted to the Scottish independence referendum of 2014. The
extensive powers which were devolved in the Scotland Act 2016 were a consequence of
a promise or ‘vow’ made just before the referendum in order to encourage voters to
reject independence. This exemplifies a broader lack of direction. Further powers have
been extended to the devolved territories without any attempt to coordinate the
decentralisation of power in the interest of a stable, workable union. Far from stabilising
the constitution, such radical change can unsettle the British system of government.

Another deficit is that the trajectory of devolution has all been about hollowing power
out of London to Edinburgh, Cardiff, and Belfast. What has been particularly lacking is
any attempt to involve the devolved territories more closely in the running of the central
state. Unlike a federal system, devolution has been primarily about ‘self-rule’ for the
regions, and not about ‘shared rule’ at the centre. Arguably, the latter aspect of the
constitution should be developed to help foster closer bonds between the citizens of
Scotland, Wales, and Northern Ireland and the UK state.

Another major lacuna has been the relative neglect of England in the whole process.
The extension of more and more powers to Scotland and Wales has led to a growth in
English nationalism and a growing disaffection within England towards the entire
devolution project from which English citizens feel so excluded. These tensions were
exacerbated by Brexit which, in the 2016 referendum, enjoyed majority support in
England and Wales but not in Scotland and Northern Ireland. It is difficult to make
predictions about how the territorial constitution will continue to evolve, but the Brexit
process did result in a new system of intergovernmental relations and now offers further
opportunities to build a more coherent union through which to manage the powers that
have been returned to the UK.