Denning Law School

Public Law
Answer Structures 2023

DEVOLUTION – PRACTICE QUESTIONS

DISCLAIMER: The answer given below will be an indicative answer. It does not mean that the
exact same answer is expected by the examiner. Nor does it imply that the answer can be
reproduced in the exam. Doing so may lead to an examination violation.

1. Discuss whether a federal system would be better than the current devolution
arrangements for the United Kingdom.

Introduction

The United Kingdom has an uncodified constitution, leading to the concept of

Parliamentary Supremacy. The concept of Parliamentary Supremacy is attached with the
UK Parliament, which is considered to have absolute powers to make laws for all matters.
The UK constitution adopts a unitary style of government, where the Government of UK
is formed from the UK Parliament. While the UK has a unitary style of government, a
multi-layered governmental structure exists in UK due to the devolution arrangements
which were initiated in 1998. The devolution arrangements have lead to creation of
governments and parliaments for regions of Scotland, Wales and Northern Ireland. The
prompt in the question requires a discussion on whether a federal system of government
would be better for the UK than the current devolution arrangement. In the essay below,
I will be arguing that the due to the current devolution arrangements, UK has already
adopted a quasi-federal structure of government.

Overview of Unitary + Federal

In order to take the argument further regarding the suitability of federal structure for the
UK, we must firstly discuss the basic features of federal system and compare the same
with a unitary system. A federal system of government is where there are multiple layers
of government, with each layer having distinct powers / competence, as prescribed by a
constitution. The legislative competence of each layer is exclusive, i.e, that those
particular powers cannot be exercised by other layers of parliaments. This allows
developing greater autonomy on regional levels. On the other hand, federal systems can
be compared with a unitary style of government. In unitary style, there would be a single
parliament having all competence. Any subordinate parliaments, even if created, would
not have exclusive jurisdiction – the central / supreme parliament can make the laws,
even for the matters which have devolved to the subordinate parliaments. A federal
system is more suited for a country having a broad and diverse population, whereas
unitary style is more suited for smaller countries with a single culture and population.

UK Structure
The UK has adopted a unitary style of government, in which the UK Parliament and the
UK government has the control / power over all the regions of UK, which includes,
Scotland, Wales, Northern Ireland and England. However, as we shall discuss below, due
to the devolution arrangements which have been introduced since 1998, the UK now has
a quasi-federal structure.
 Denning Law School
Public Law
Answer Structures 2023

Need for Devolution

While historically, the UK had been governed singularly by the UK government, over
time, a concern grew that the UK Parliament does not sufficiently address the concerns
of people from Scotland, Wales and NI. This is because that the population of all these
regions combined only makes up 16% of the UK population and the MPs in the
Parliament. Further, one can observe that there did exist cultural, linguistic and even
religious differences amongst the people of different regions, hence, raising the concern
of self-governance.

1978 Attempt
As a result of the growing concern for self-governance, the UK government decided to
have devolved assemblies, particularly, for Scotland and Wales and for that purpose, they
undertook a referendum in 1978 in these regions to gauge public opinion on the same.
However, the referendum failed in both, S and W. By devolution, it was meant that
subordinate legislatures would be established for both the regions.

1998 reforms
While the 1978 referendum was unsuccessful, the UK again conducted a referendum in
1998 in S, W and NI for the devolution arrangements. This time, the referendum was
successful. We shall be discussing the devolution arrangements for each of regions
below.

Scotland
As a result of the devolution referendum, the UK Parliament enacted Scotland Act 1998
which established the Scottish Parliament and the Scottish Government, both having
competence over legislative and executive matters of Scotland respectively. The 1998
Act allowed that the Scottish Parliament can make laws for Scotland on all matters,
except the listed reserved matters. The Scottish Parliament would become the voice of
the Scottish people, as they would be electing the MSPs (members of Scottish
Parliament). Further, the powers / competence of the Scottish Parliament were increased
by the UK Parliament in 2012 and 2016 and further powers were given to Scotland,
particularly, in relation to fiscal matters. Moreover, the voice of self-governance had also
compelled the UK to even conduct a referendum in 2014 for the independence of
Scotland, which, however, was unsuccessful.

Wales
In Wales, the devolution movement had been more timid, as compared to Scotland. In
1998, the referendum was successful, just by a very thin margin and the UK Parliament,
in 1998, only established the Welsh Assembly, without a separate government for Wales.
The Welsh Government was later established in 2006. One of the reasons for a weak
devolution movement in Wales was that the right of self-governance was not strongly
held by the Welsh people.
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Public Law
Answer Structures 2023

Northern Ireland
In Northern Ireland, the devolution arrangements reflected the political unrest which
existed before 1998. Prior to the Good Friday Agreement, there was political unrest in
NI, due to two major factions, namely the Unionists and Irish Nationals. The political
difference between the two had lead to serious problem of violence in the region. The
devolution arrangement reflected the Good Friday settlement and it stated that the
devolved government in NI would always be a coalition between the Unionists and Irish
Nationals.

English Devolution
While there is a devolution arrangement made for the S, W and NI, there is no such
separate body / legislature established for England. This lead to a question regarding the
English devolution. The issue of English devolution was settled by having a convention
of EVEL (English votes for English Laws), i.e. only those members of UK Parliament
would vote on the laws being made for England, who are representing English
constituencies. While this convention resolved the English question, currently this
convention has been suspended since 2021.

Evaluation of the Current Structure

The current devolution structure does not legally limit the UK Parliament’s powers. The
UK parliament still continues to enjoy unlimited law making powers. The UK parliament
can still make a law on matters which have been devolved to devolved assemblies.
Similarly, there is no legal restriction on the UK Parliament to not undo the devolution
arrangements. While Scotland Act 2016 does state that the UK Parliament cannot
unilaterally roll back the devolution arrangement, this provision can be regarded as
limiting the powers of future parliaments. It should be noted that according to Diceyan
principle of PS, the P is never bound by its predecessors nor can the P bind its successors.
Therefore, such a statement would not legally limit the PS – the P can still legally roll
back the devolution arrangements irrespective of the Scotland Act 2016.

Role of Conventions
While the devolution arrangements do not legally alter the UK structure, one cannot
ignore the role played by conventions in the UK constitution. Conventions are the non-
legal rules which are considered to be binding upon those who are forming part of the
state. Breach of a convention would not lead to legal repercussions, but will create
political problems, including possibly, a revolution. The devolution arrangements in UK
have lead to a creation of a new convention, namely, the Sewel Convention, which
requires the UK parliament to not make laws on devolved matters. Similarly, by
convention, the UK parliament would not roll back the devolution arrangement. These
conventions can be considered to have lead to UK adopting a federal or a quasi-federal
structure, as these convention show that the UK parliament will not interfere in devolved
matters, which would establish the autonomy of the regional parliaments.
 Denning Law School
Public Law
Answer Structures 2023

Effective Coordination
Further, the current devolution structure has mechanisms for coordination and
cooperation between the governments of NI, S, W and the UK. These mechanisms
include having a joint ministerial committee (JMC) as well as presence of a minister in
the UK cabinet, each for affairs of S, W and NI.

Ineffective Coordination
While the devolution arrangement appears to be successful in keeping the UK integrated
by and large, there are nonetheless, limitations of the current devolution structure. The
devolution arrangement does not always lead to effective coordination amongst the
various governments, causing administrative hassle. An example of this can be seen in
the implementation CoViD-19 measures by the different devolved governments, which
lead to no coordinated efforts for curbing the spread of disease.

Conclusion
Nonetheless, in my opinion, the current devolution structure is more appropriate for the
UK, as this ensures the flexibility and convenience in the administration. Moreover, a
pure federal structure would require an absolute limitation on the PS, which can only be
achieved by having a codified constitution. Further, it should be noted that the UK
constitution has always historically developed incrementally, and to address a particular
concern at a time. The devolution arrangement also reflects this by the fact that there is
no uniform devolution of powers. The powers have been devolved to S, W and NI to the
extent required, hence, the current structure can be regarded as better as opposed to a
federal structure.