Devolution: The Royal Commission on the Constitution 1973 defined devolution as
‘the delegation of central government powers without the relinquishment of
sovereignty’. Despite the consideration given by the Commission to the possible
models of devolution, the process did not begin until 1997, as part of a programme
of constitutional reform instigated by the new Labour administration. The nature
and extent of devolution in the UK has been described as ‘asymmetrical’ (Elliot, M.
and Thomas, R. (2014) Public Law (2nd en). Oxford: OUP, p. 274) and has occurred
incrementally. The 2014 referendum on Scottish independence raised the real
possibility of the dissolution of the union. in the wake of the 2016 referendum
concerning the UK’s membership of the European Union, questions remain
regarding the future relationship between Westminster and the devolved powers.
Arguably, the delegation of power has led to an irreversible relinquishment of
sovereignty. Dicey set out three aspects to Parliamentary supremacy: first, that
Parliament is free to legislate on any subject; secondly, that no Parliament can be
bound by a predecessor or bind a successor; and, lastly, that no person or body can
challenge the validity of an Act of Parliament.
The devolution settlements raise questions about the continued applicability of this
definition. Devolution of government power to Scotland, Wales and Northern Ireland
followed referenda in each region. The Scotland Act 1998 established the Scottish
Parliament, and conferred on it the power to make primary legislation in areas
encompassed by the Act. Westminster explicitly reserved certain policy areas,
including matters of defence, and created exceptions to legal competence (for
example, the Scottish Parliament may not legislate in contravention of the European
Convention on Human Rights).
The Northern Ireland Assembly was given a similar type of legislative competence.
The Welsh Assembly was initially given far more limited powers, and legislative
competence stretched only to delegated legislation. In each case, the legislation
expressly preserved the supremacy of the Westminster Parliament. Devolution has
occurred only through an Act of Parliament, and could be reversed in the same way.
The Northern Ireland Assembly has been suspended on four separate occasions,
including a five-year period of direct rule from Westminster between 2002 and
2007. This should be placed within the context of the historical conflict in Northern
Ireland, which created particular tensions in respect of power-sharing between the
unionist and republican parties.
Devolution illustrates the difference between legal possibility and political reality: it
is difficult to imagine any government seeking to abolish the regional assemblies
and return all the legislative power to Westminster. In fact, since 1997, Parliament
has ceded additional power to the devolved administrations. In 2006, the
Government of Wales Act granted the Welsh Assembly additional powers and
included the possibility of a future extension to include the power to make primary
legislation if voted for in a referendum. In 2011, a referendum was held and a
majority voted in favour of the extension of power. in 2013, the First minister for
Wales stated in an interview that it was no longer acceptable to rely upon
understanding and conventions, and suggested that it was time to enact legislation
to confirm that Westminster will not take back powers that have been devolved
(The Independent, 26/12/13). The Wales Act 2017 extended the legislative
competencies of the Assembly and recognised the permanence of the institutions.
The Scotland Act 2012 gave further powers to the Holyrood Parliament, including
an increased ability to set taxes. In 2014, the referendum on independence was
held. Although a majority rejected independence, this was achieved only with a
promise of increased devolution being made by all three main political parties. The
resulting legislation, the Scotland Act 2016, acknowledged the permanence of the
Scottish institutions and formally recorded the Sewel Convention in statute. Any
doubt as to the constitutional significance of this change, however, was decisively
removed by the decision in R (Miller) v Secretary of State for Exiting the European
Union [2017]. Although there was dissent on the question of the scope of ministerial
power to trigger the withdrawal process, all 11 judges agreed that the wording of
the amended Scotland Act does nothing to alter the legal position that the
convention remains legally unenforceable. The acknowledgement of the
understanding that Westminster will not ‘normally’ legislate on behalf of the regions
is, then, nothing more than a political gesture, and a rather empty one at that. In
1997, discussing the Welsh settlement, Davies described devolution as ‘a process,
not an event’, and this has been proven to be true. The process, however, has not
been smooth, as it appears that successive governments have attempted to quell
political pressures from the regions as they have arisen, rather than implementing a
systematic plan to manage the asymmetrical relationships within the union.
Recently Supreme Court was faced with the question whether UK Withdrawal
from the European Union (Legal Continuity) (Scotland) Bill was within the
legislative competence of the Scottish Parliament. The Scottish Parliament had
passed the Bill following the defeat of amendments to what is now the European
Union (Withdrawal) Act 2018 as it passed through the Houses of Parliament. Among
other things, the Bill sought to empower the Scottish Ministers to make
amendments to what will become ‘retained EU law’ within areas of devolved
legislative competence, but without the conditions which apply to the equivalent
power conferred by the European Union (Withdrawal) Act 2018. Lady Hale speaking
for a Supreme Court stated that the provisions of the Scottish Act ‘reflect the
essence of devolution in contrast to a federal model’. Thus in matters devolved, the
U.K Parliament can regain its supremacy.
The devolution structure in U.K is however is anomalous as there is no devolved
parliament of England. Given that 84% of the U.K. population is English the English
interests seem to be unrepresented in the U.K institutions of government. It must
be remembered that devolution is a process not an event (Ron Davis). Devolution in
U.K is dynamic developing with the changing needs of time. But as the position now
stands it cannot be said that federal state of U.K is created by the process of
devolution as parliament can regain its supremacy in devolved matters as observed
in the recent UK Withdrawal from the European Union (Legal Continuity) (Scotland)
Bill case. In Scotland the Scottish Nationalist Party emerged as the largest party in
Scottish Parliament and also the majority Scottish seats in Westminster Parliament.
Therefore there is every possibility of an independent Scotland in future with Welsh
and Northern Irelend not far away to claim federal or independence status.