Devolution
PART I
Terminology
Federalism
Constitution where
legislative function is
divided
geographically and
symmetrically amongst federal
and provincial bodies
Each enjoying some areas
of autonomy.
Terminology
Devolution
Delegation of central
legislative
and/or executive
powers
without the
relinquishment
of sovereignty
Devolution involves the
establishment of national
legislatures with law-making
powers defined in the
constituent Act of the United
Kingdom Parliament.
The UK Parliament retains its
sovereign power to legislate for
the nations.
Sources of Devolution
• The Scotland Act 1998, 2016
• Government of Wales Acts 1998,
2006, 2017
• Northern Ireland Act 1998 and 2009
• Greater London Authority 1999
(amended in 2007)
Court jurisdiction over
devolution
• Supreme Court (assumed
jurisdiction in 2009 from the
Privy Council)
• Joint Ministerial Committee on
Devolution (JMC)
The Scotland Act 1998
• Established a Parliament in
Edinburgh.
Sec.28
Laws – Acts of the Scottish
Parliament
• Scottish Executive (health,
education, justice, housing).
The Scotland Act 1998
Sec. 29 - legislative limitations
• No amends to the Scottish Act itself.
• No changes to any law outside
Scotland.
• No changes to the EC laws and
obligations.
• No changes to the HRA or rights
deriving from it.
The Scotland Act 1998
Reserved matters = competence of Westminster
• Union with England
• Matters affecting the Crown
• The Civil Service
The Scotland Act 1998 – Schedule
5 (Reserved Matters)
• Registration and funding of political
parties
• The UK Parliament
• The higher Scottish courts
• International relations/foreign affairs
• Defence and national security
• Economic and monetary policy
• Border controls
• Media policy
The Scotland Act 1998
Sec.37
Acts of Union 1706 are still in force
Only Westminster can override them
Unitary constitution
The Scotland Act 1998
• The Act does not prevent
Westminster from legislating for
Scotland
• Sewel Convention – normally
Westminster would not legislate on
Scottish matters without the
consent of the Scottish Parliament
(Scotland Act 2016 s.2)
The Scotland Act 1998
West Lothian question
Westminster MPs cannot sit in
Scottish Parliament.
Scottish representatives can vote
on matters affecting only England.
Scottish ministers are
accountable to Westminster.
The Scotland Act 1998
• Scottish Parliament has the power to
make Acts of Parliament within the
sphere of competence laid in the
Scotland Act
• Section 28(7) makes clear that the
legislative competence of the Scottish
Parliament does not affect the power
of Westminster to make laws for
Scotland.
PART II
Scotland Act 2016
• Additional powers (e.g. abortion)
• Sec. 2 = In Sec. 28 of the Scotland Act
1998 at the end add (8) “But it is
recognized that Parliament of the
United Kingdom will not normally
legislate with regard to devolved
matters without the consent of the
Scottish Parliament”
• Codification of the Sewel Convention
R (Miller) v Secretary of State for
Exiting the European Union [2018] AC
62 (para. 136-137)
The Supreme Court ruled that the
devolved legislatures had no
“legal veto on the United Kingdom’s
withdrawal from the European Union”
However =
The UK government accepted that legislation
to implement Brexit does require devolved
agreement under the Sewel Convention,
because it changes the powers of the
devolved bodies
Supreme Court, Judgment, The UK
Withdrawal from the European Union
(Legal Continuity) (Scotland) Bill, 13
December 2018
Scottish Independence Vote (No.2)
What is the process?
See
[Link]
ment-and-elections/devolution/whats-the-pr
ocess-for-a-second-independence-referendu
m-in-scotland/
Government of Wales Act 1998
• Sets up the National Assembly for
Wales.
• Limited legislative powers (secondary
legislation).
• Limited areas of competence.
• It exercise mostly administrative
functions (but see the Government of
Wales Act 2006).
• Westminster Parliament continues to
legislate for Wales.
Government of Wales Act 2006
• Extends legislative power of the
Welsh Assembly.
• Power to create primary legislation
(secondary, in relation to
Westminster Acts)
• Creates an Executive (Welsh
Assembly Government/National
Assembly)
• Change the system of devolution from
‘conferred powers’ model to the
‘reserved powers’ model.
Wales Act 2017
• Implemented a reserved matter model
(similar to the Scotland Act 1998
model).
• Introduced income tax powers.
• Increased governmental borrowing to
support capital investment.
• Referendum is required for the
abolishment of the National Assembly
for Wales and the Welsh Government.
Northern Ireland Act 1998
• Creates the NI Assembly.
• Sec.1 = Northern Ireland is part of
the UK.
• Sec.1 (2) = Allows for a referendum
on independence.
Northern Ireland Act 1998
Results of such referendum need to be
approved by Westminster and the
Republic of Ireland.
Northern Ireland Act 1998
Reserved matters
Westminster Parliament
e.g Crown, Media
Northern Ireland Act 1998
• Power sharing problems
- Good Friday Agreement (1998) – former
political opponents to work together
- St. Andrew’s Agreements (1&2) - re
devolution to NI subject to conditions
- Permanent Human Rights Commission
(Sche.7)
- Permanent Equality Commission
Northern Ireland Act 2009 – key
provisions
• Finalises the transfer of powers in
relation to ‘Justice and Policing.’
(Department of Justice for Northern
Ireland)
• Sec. 2 (3) – Judicial Appointments –
powers of the Lord Chancellor have
been transferred to the NI JAC
Devolution and Supremacy of
Parliament
• Are devolution acts ‘constitutional
acts’?
• Are they politically and/or legally
entrenched?
• What would happen if Westminster
Parliament unilaterally and without a
referendum abolished devolution acts?
• Is the doctrine of supremacy of
parliament redundant in reality?