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Devolution

Previous: Governance in the UK

Devolution is a very significant contemporary feature of the UK’s constitution. Devolution means:

The delegation of central government powers without the relinquishment of sovereignty.

Devolved states such as the UK can be juxtaposed with federal and unitary states, and with confederations.

Alternatives to devolution

A federal state, such as North America, is one where  sovereignty is divided amongst many federal units (’states’ in the conventional sense). Each enjoys some areas of autonomy. This is the opposite of a unitary state where sovereignty is concentrated in one supreme central government. A confederation is a loose association of sovereign states or communities, such as Switzerland or that in Star Wars. A federal UK would be inviable, as about 10 times the number of political representatives would be required as we have today and England would provide the dominant viewpoint in all situations due to its proportionately high population in comparison with Scotland and Wales. Federalism would also not complement English constitutional history. Unlike an immediate change to federalism, devolution is a process which can be introduced slowly.

Types of devolution

There are two types of devolution, legislative and executive. Legislative devolution is the devolution of powers to make primary legislation in the devolved area. Executive devolution only transfers administrative powers and the power to make secondary legislation. Both have occurred in the UK in past few decades.

Composition of the UK

Before we delve into UK devolution, it is worth noting what we mean when we talk about the UK. England was united in 1066 and had absorbed Wales by 1284. The Scottish and English Crowns were united in 1603, followed by full union in 1707. Scotland then no longer had its own legal system. Ireland joined England with the Acts of Union 1800 (concurrent English and Irish Acts) to create the United Kingdom of Great Britain and Ireland. In 1922, this was changed for a last time to the United Kingdom of Great Britain and Northern Ireland following the Irish partition in 1920. The UK therefore refers to England, Wales, Scotland and Northern Ireland.

Devolution in Scotland

In 1707, the Act of Union declared that England and Scotland would share the English legislature, and in a referendum in 1978, the Scottish people voted against devolution. Either they were happy sharing the English legal system, or they wanted more than devolution; did they want independence? In 1997, another referendum showed that the Scottish people did in fact want to attain some devolved powers.

The Scotland Act 1998

Following Labour’s victory in the 1998 general election, Scotland was given legislative powers for any matter not in a list of reserved matters. These matters included monetary policy, immigration, foreign affairs and the Crown. They were also allowed to vary the basic rate of income tax by up to 3%. The Scotland Act 1998 provided this step in the Scottish devolution process. Any Acts passed by the Scottish Parliament (also created by the 1998 Act) must be compatible with EU law and the ECHR. In non-reserved areas, Scotland may repeal Westminster law, however if an Act of Scottish Parliament is found to be in a devolved area, it is repealed with retrospective effect.

Executive devolution also occurred under the Scotland Act 1998, and a first minister was appointed to sit in Westminster.

Scottish law also receives scrutiny both internally and by Westminster to ensure that it is not within any reserved matters, according to sections 31-33 of the Act.

As devolution does not relinquish sovereignty, Westminster is entitled to legislate for Scotland, even in non-reserved matters and to revoke devolved powers altogether, though this would be unlikely to occur.

Scottish Independence

Scotland now wishes, as discussed regarding the 1978 referendum, to become an entirely independent state, a step further than devolution. There will be a referendum in Scotland in 2014 to decide this matter. The date of the referendum, the 18th September 2014 was not chosen arbitrarily. It coincides with the 700th anniversary of the Battle of Bannockburn and the commonwealth games of 2014. If independence goes ahead, this will make a fair number of changes to the UK’s buy alprazolam powder uncodified constitution.

Devolution in Wales

The Government of Wales Act 1998

Following a very narrow majority result, Wales’ 1997 referendum confirmed that Wales also want some of its own devolved powers. The Government of Wales Act 1998 provided this, but not at generously as in Scotland. Only executive devolved powers were given to Wales, with the formation of a National Assembly, unlike in Scotland where legislative devolution also occurred. Wales was also assigned a list of areas in which it could create secondary legislation. In Scotland, the opposite occurred: a list of reserved matters was provided. There was general dissatisfaction with the powers devolved to Wales in 1998, to the point that an unofficial cabinet started developing. The Richard Commission reported this.

The Government of Wales Act 2006

As a result of the Richard Commission’s report, in 2006 Wales was given more devolved power. At last, it was given legislative powers pending the result of a later referendum with the official formation of the Welsh Assembly Government. Its legislative competency areas were enhanced and the Silk Commission recommended in 2012 that Wales should be given fiscal powers too, just as Scotland has. Following the aforementioned referendum, Wales attained legislative powers on 03/03/2011.

Devolution in Northern Ireland

Following the ‘Good Friday agreement’ of 1997, Northern Ireland also wished to have legislative and executive devolved powers given to itself.

The Northern Ireland Act 1998

A national assembly was established in Northern Ireland courtesy of the Northern Ireland Act 1998. Legislative competency was, similarly to Wales, given with a list of permitted areas. Cross community support was required for a Prime Minister election. However, following an initial inability to implement the Good Friday agreement, the assembly was suspended in 2002. Between 2002 and 2007, Assembly members were still paid but did not work in this capacity. When Westminster threatened to stop paying members if they didn’t sort out their issues, stability was quickly found as of April 2007. Police powers were devolved to Ireland in 2010.

Comparing Scottish and Welsh devolution

Similarities

Both Scotland and Wales now have independent, unicameral legislatures, with members elected by a proportional representation system. Both are subordinate to Westminster and the Supreme Court has jurisdiction to review any legislation passed in either devolved unit.

Differences

Unlike Wales, Scotland has had legislative powers since 1998, unlike Wales which attained such powers in 2011. Scotland also has the ability to vary income tax: fiscal powers, which Wales does not have. More fiscal power was granted to Scotland with the Scotland Act 2012. Scotland can also legislate in any area not reserved, whereas Wales may only legislate in specific areas.

Issues with devolution

Devolution might be the best solution for the UK’s changing constitution at the moment

The West Lothian question

The first issue with devolution is this. Representatives of devolved units vote on laws which affect England only, as they are within devolved competencies. Therefore, the impact of the representatives’ votes are not applicable to their own units. This seems a little unfair on England, who provided the devolved powers in the first place. For example, English university fees would likely still be free or at least very cheap; if it were not for the Scottish MPs whose votes caused this cost to arise, after Scotland had ruled that University would remain free under its devolved jurisdiction.

The Sewell Convention

One issue for devolved legislatures is that there is legally nothing to stop Westminster legislating for the devolved unit in devolved areas of law. This could undermine the whole idea of devolved powers, therefore the Sewell Convention prevents such an action. In order for Westminster to legislate in devolved areas, there must be agreement between the devolved legislature and Westminster under the convention. This can actually be quite useful though, as often the devolved legislature may ask Westminster to legislate for them if Westminster has relevant expertise or if it would be cheaper for Westminster to do so. The convention can also ensure that certain areas of law are harmonious between two legislatures, such as the laws regarding how roads are used in both England and Scotland.

Next: Judicial review

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