DEVOLUTION AND THE UK
CONSTITUTON
Principle argument
• Devolution is a dynamic process which has already had many
knock on implications for the UK constitutional system.
• While it appears in some respects irreversible in the sense that
it is not foreseeable that any Westminster government would
abolish the devolved institutions without consent, there has
been no clear constitutional objective.
• Devolution should not be regarded as the first step towards a
federal system.
• Rather the situation regarding each devolved nation has been
constantly developing and the response to this has been and
continues to be pragmatic.
Main objectives
• To set out the main characteristics of each devolved
system and explain how these have been evolving
since 1999.
• To explain how the core principle of parliamentary
sovereignty have been maintained under devolution.
• To mention the financial parameters of devolution
and the issue of policy divergence in the context of
present financial crisis.
• To assess the prospects for the future mainly in
relation to Scottish Independence.
Elizabeth 1 died in 1603 without an heir
She was succeeded by the son of Mary Queen of Scots
James VI of Scotland who became James I of England
The Act of Union 1707 meant that the Scottish
Parliament consented to combined with the
Westminster Parliament
Reasons for devolution
• Scotland: separate nation until the unification of Crown 1603
and Parliaments in 1707.
• Nationalist aspirations revived in 1970’s. Coincided with entry
into EU and discovery of North Sea oil of Scottish coast.
• Wales: administrative integration since late middle ages but
retained distinct culture and language.
• Northern Ireland: historical problem relating to the repeal of the
Ireland Act 1800 conferring nation status on the Irish Republic
while granting devolved government to north. Problem in
reconciling two communities divided on sectarian grounds.
• Ireland, Scotland, Wales historically separate and in this sense
very different from inventing regional government/devolution for
England.
Prelude to devolution
• Increasing trend towards centralisation under the
Thatcher/Major governments 1979 -1997.
• Decline in political support for the Conservative party.
Virtually no seats left in Scotland and Wales.
• Emergence of nationalist politics in Scotland and
Wales.
• Labour and Liberal Democrats go into 1997 election
with a commitment to devolution.
• Northern Ireland moving towards a peace settlement
particularly ‘Good Friday’ agreement of 1998.
Labour government returned with big majority after 18
years of Tory rule (Donald Dewar, Tony Blair and Ron
Davies).
Referendums
• Devolution was introduced following referenda in
Scotland, Wales and Northern Ireland.
• The electorate in England were only consulted to the
extent that they returned a pro devolution party
Westminster in 1997.
• In the Scottish referendum approval for tax raising
powers as well as for devolved government.
• Referendum in Wales was only marginally in favour
of going ahead.
• A referendum has since been held to approve the
grant of law-making powers to the Welsh Assembly.
How devolution was introduced
• Before devolution a separate government department existed
for Scotland, Wales and Northern Ireland represented at the
Cabinet table by a Secretary of State.
• Scotland in particular remained distinctive with its own
educational and legal system.
• Officials from these departments formed the core of the
devolved administrations when they were set up in 1999.
• Also legislation intended for Scotland and Wales underwent a
distinct procedure. It was scrutinised by the Scottish/Welsh
Grand committee comprising MPs from Scotland/Wales.
Devolution legislation
• Devolution established by statute: Scotland Act 1998,
Government of Wales Act 1998; Northern Ireland Act
1998.
• Founding statutes equivalent to constitutions for the
devolved parts of the UK.
• But these statutes not entrenched and have already
been amended in significant ways.
• Sovereignty remains with Westminster and for
example EU matters negotiated by Westminster.
• Each devolution statute different: asymmetrical redistribution of powers (Spain/special regions).
Devolution compared to federal systems of
government
Federalism is a method for sharing sovereignty, and not just
power, between governments within a single state. With
devolution sovereignty has remained with Westminster.
No constitutional amendment required to reverse or modify the
system.
As a constitutional device it presupposes a formal political
agreement establishing both the levels of government and their
spheres of authority.
Federal systems are usually symmetrical with all the states
having the same institutions and powers. Devolution has
allowed individually fashioned systems for each part of the UK.
As with federal systems the national government nearly always
responsible for national finance, foreign affairs, international
trade and defence, other functions vary with system.
Scottish Parliament
Scottish Parliament
Scottish Devolution
Scotland Act 1998 introduced a Scottish Parliament
of 129 members, elected every 4 years.
full legislative powers over e.g., education, law, courts,
prisons, economic development, agriculture, fisheries,
local government, environment, housing, passenger
and
road transport, forestry and the arts.
But macro-economic issues, monetary and fiscal policy
remain with Westminster.
Parliament determines its own procedures - new
committee system and framework for passing legislation
introduced.
Elections/Scotland and Wales
• Method of election for Scotland and Wales is the
partly proportional Additional Member System (AMS).
• Fixed four year terms
• Electors have two votes one FPTP and the other for
a list.
• E.g., in Scotland 129 MSPs elected for 73
constituencies the remaining 58 from the list - this
allows a redistribution to take place on the basis of
the overall popularity of parties - smaller parties are
less disadvantaged, especially in Scotland.
Protecting sovereignty
General power to legislate is given to the Scottish Parliament and
Northern Ireland Assembly.
However, this power is limited in several ways:
For example in relation to Scotland under SA s.29:
(1) Certain enactments are specifically listed in SA Schedule 4 as
being protected from modification.
(2) Also 'reserved matters' in SA Schedule 5 are outside the
competence of the SP.
(3) Further prevented from enacting legislation with extra territorial
effects, contrary to EU law and in conflict with the ECHR.
Protecting sovereignty
General power to legislate granted to Scottish Parliament, NI
Assembly and now Welsh Assembly.
However this is limited in a number of ways:
(1) Certain enactments listed as immune from modification e.g.
sched. 4 SA 1998.
(2) Reserved matters listed as outside of competence e.g. shed. 5
SA 1998.
(3) Further prevented from enacting legislation with extra territorial
effects, contrary to EU law and in conflict with the ECHR.
Procedures protecting sovereignty
SA requires pre-legislative and post-legislative scrutiny under
ss.31 and 32 (similar for Wales and NI).
Presiding Officer decide whether a bill falls within legislative
competence prior to introduction.
Prior to Royal Assent the law officers consider whether the
measure is within legislative competence.
A bill can be referred to the Judicial Committee (soon the
Supreme Court) to decide the legislative competence.
The Secretary of State has additional powers to intervene under
SA s.35 if he/she has reasonable grounds to believe that
legislation beyond the competence of the SP.
Legislative consent motions
• At the moment when devolution was introduced it was
envisaged that a (Sewel) convention would emerge
acknowledging that the UK Parliament will not normally legislate
in devolved areas without consent of the devolved legislative
body.
• In practice, to the surprise of many, legislative consent motions
have been a frequent occurrence e.g. for practical reasons to
avoid duplication where EU directives etc have to be
implemented.
Nationalists win a majority in the Scottish
Parliament
National Assembly of Wales
Edward I responsible for defeating the Welsh and
building the formidable castles which remain to this day
Occasional rebellions e.g. at the beginning of
the fifteenth century
Act of Union with Wales of 1536 combined the
administration of the two nations
Welsh Devolution
Phases to date:
Government of Wales Act 1998
Government of Wales Act 2006 (following Richard
Commission report)
Elected Assembly of 60 members
Cabinet System of government.
First secretary and members of Executive Committee
accountable to the Assembly.
Legislation for Wales only through Westminster
Parliament
Financed under Barnett formula (no tax raising powers)
Competences devolved
• GWA 1998 s.22(2) and sched 2 e.g. agriculture,
forestry, fisheries and food, environmental and
cultural matters, economic and industrial
development, education and training, health, housing,
local government, social services, sport and tourism,
town and country planning, transport, water and flood
defences and the Welsh language.
• Plus responsibility for Welsh quangos devolved
• The Government of Wales Act 2006 creates an
executive body, the Welsh Assembly Government
(GWA, Part II s45ff).
Government of Wales Act 2006
• Under the 2006 GWA the NAW granted the power to
pass a new form of delegated legislation termed
‘assembly measures' (see GWA Part III ss.93-102).
However, this involves a special procedure between
the Welsh Assembly and the Westminster Parliament.
• Plus capacity to make subordinate legislation.
• Full legislative capacity conferred but only after a
referendum.
Devolution Northern Ireland
Northern Ireland
The Northern Ireland Act 1998 passed following Good Friday
agreement 1998.
System of compulsory coalition government and a system of
guaranteed power sharing.
(1) 108 member Assembly elected by Single Transferable Vote
STV based on 18 Westminster parliamentary constituencies.
(2) The Assembly has legislative competence over devolved
matters e.g., agriculture, economic development, education,
environment, health and social services.
(3) The government is formed with power sharing at every level by
a special system of election to ensure representation of both
communities. The First Minister and Deputy First Minister from
different communities and ministerial portfolios shared.
Parallel consent
(4) NIA avoid any possibility of legislation being forced through that
might adversely affect any minority community. Voting
arrangements ensure that one community cannot interfere with
basic civil rights of the other i.e. parallel consent on important
issues through qualified majority voting
Supra-national dimension
(5) North-South ministerial council brings together members of the
executive of the Northern Ireland Assembly and representatives of
the Irish government for the purposes of co-operation on issues of
common interest.
(6) British Irish Council considers broader mutual interests with the
UK and consists of representatives from the Scottish Parliament,
Welsh Assembly, Channel Isles and Isle of Mann.
(7) recognises principle of national self-determination to get over
problems of nationalists wishing to be part of the Republic and
Unionists wishing to remain with UK.
In summary
UK system ‘asymmetrical’ different degrees of autonomy
No devolved government for England
Scotland: has been termed quasi-federalism
Elected Parliament or Assembly with competences for many
domestic matters in the hands of devolved bodies
Scotland Wales and NI have law making powers over devolved
areas.
Scottish Parliament granted limited tax raising but not used.
Northern Ireland controversial area of security and policing not
devolved as part of Good Friday Agreement but this was added by
legislation following St Andrew’s Agreement.
West Lothian question
• The fact that England has no equivalent level of
government creates a number of constitutional
problems.
• Scottish, Welsh, NI MPs at Westminster vote on
matters concerning England.
• English MPs no longer vote over devolved matters
• Westminster MPs representing devolved parts of the
UK have little to do for their constituents as policy
implemented locally.
• No direct accountability at Westminster for devolved
spending.
What about England?
No equivalent level of government for England (51 million/84%
population) but the asymmetry of devolution raises a number of
constitutional issues.
No support for an English Parliament but Westminster arguably has
become one by default.
Back door method: introduce measures to deal with West Lothian
question e.g. voting restrictions for Scottish, Welsh, NI MPs
Proposals for equivalent tier of English Regional government based
on Regional Development Agencies. Prescott scheme a total
failure following referendum in North East.
London only part of England with additional tier of strategic
government i.e. elected Mayor with Cabinet accountable to GLA
(not equivalent to devolution)
Financing devolution
Justifying Barnett
This formula was introduced in the 1970’s for a variety of
reasons:
(1) adjust spending levels to compensate for population sparsity
in Scotland, Wales and NI;
(2) Varying transport needs UK wide;
(3) Higher relative levels of ill health;
(4) Greater cost of rural education;
(5) Acute levels of industrial decline and high unemployment;
(6) Lower income per head in Scotland, Wales and Northern
Ireland.
(7) It avoided annual departmental haggling over allocations to
Scottish, Welsh and NI Offices.
What is the Barnett formula?
Barnett Formula is a block grant formala which sets percentages
of changes in comparable expenditure in Great Britain.
On the basis of population it proposes 85 per cent for England,
10 per cent of expenditure for Scotland and 5 per cent for Wales
and 2.75 for NI.
The Barnett formula allocates 10/85ths of the increases in
comparable English provision to the Scotland program.
The formula applies to the Scottish, Welsh and NI block grants
which cover most of the expenditure within the responsibilities of
the devolved administrations.
Absence of ring fencing means that once the funds are handed
over to them the devolved administrations can allocate
according to their own preferences.
Dispute resolution
Normally by way of concordats (soft law agreements) In the case of
finance:
‘If there is disagreement between Treasury ministers and devolved
administrations about changes to the Statement or about any
aspect of its application to determining funding, the relevant
devolved administration or Secretary of State can pursue the issue
with Treasury Ministers’.
If still not resolved then referred to ministers of devolved
administrations and Westminster government through the Joint
Ministerial Committee and finally to the Cabinet.
Devolution issues
Challenges as devolution issues on the grounds set out below may be
brought before the ordinary courts and may reach the UK Supreme Court
on final appeal
•whether an Act of the Scottish Parliament or any provision of an Act of the
Scottish Parliament is within the legislative competence of the Parliament
•"A member of the Scottish Executive has no power to make any
subordinate legislation, or to do any other act, so far as the legislation or
Act is incompatible with any of the Convention rights or with Community
law".
•A question whether a purported or proposed exercise of a function by a
member of the Scottish Executive is, or would be, incompatible with any of
the Convention rights or with Community law
AXA General Insurance Ltd v The Lord
Advocate [2011] UKSC
Insurance company challenged validity of Damages (Asbestosrelated Conditions) (Scotland) Act 2009 which would expose them
to claims for asbestos related diseases because (a) it was
incompatible with their ECHR rights and thus outside legislative
competence and (b) by way of judicial review as unreasonable,
irrational and arbitary exercise of legislative authority.
Insurance policy a possession and they were victims but the 2009
Act pursued a legitimate aim. The means chosen by the SP were
reasonably proportionate to the aim sought to be realised.
In principle Acts of SP are subject to JR but only if the SP was to
use its powers to abolish JR or diminish the role of the courts in
protecting the individual not on the above common law grounds.
Scotland Bill/Model of Full Financial
Responsibility
Following Calman recommendations to be implemented in the
Scotland Act 2012 means that Scotland will raise 10p in the pound
of its income tax locally and the previous 3p tax raising power will
be abolished.
Further powers to raise taxes and for borrowing also included.
Scottish Government prefers a fiscal autonomy model:
All taxes with the exception of VAT set in Scotland
Scotland would make a payment to Westminster to cover e.g.
defence and foreign policy.
Scotland responsible for all aspect of public spending
Scotland would have borrowing powers
New ‘Economic Agreement’ to ensure Scottish and UK economic
policies complimentary.
Dynamics of devolution
• Northern Irish devolution broke down four times over
disarmament issues before current elections and re-launch in
2007 but now it appears to work.
• Scotland since 2007 has nationalist (SNP) government with
aspirations for independent status in EU, similar to Irish
Republic. Additional competences likely to be given to Scotland.
• Wales granted increased legislative power and may have the
same law making powers as Scotland under the Government of
Wales Act 2006 following assembly vote and referendum.
• Increasing calls for political change for England e.g. at least
revision of Barnett formula, at most English parliament.
• Problem of voter fatigue and expense
• Devolution was not a settlement but it has triggered an on going
process.
Has devolution been a success?
• Popular vote since 1999 has gone down
• Potential for policy divergence e.g. emphasis in
Scotland on social policies care for elderly and
student grants. Similar in Wales.
• Increase in powers of Welsh institutions
• Scottish Nationalists in power in Scotland. Is this first
step on road to independence?
• Peace in Northern Island cemented by permanent
resumption of power sharing by opposing factions.
• Method of funding under Barnett remains
controversial.