Constitutional Law - Devolution 3 Flashcards
Can the UK pass whatever legislation it wants for its 4 Devolved countries?
Think - Unitary State.
Devolved countries - Scottland, Northern Ireland and Wales
Yes. Although there are 4 different countries, Westminister is sovereign.
- It has delegated some of its powrs to the devolved governments but without giving up its own power
- There is one principle source of legal power in the UK (Westminister)
- Wesminister has the competence to legislate for the whole of the UK at all levels.
This is as the UK is a Unitary State.
Contrast this with a Federal state
- Constitution gives powers (foreign policy, defence, immigration) to the federal governments and state governments as in the USA and Germany.
- Certain powers can be exercised concurrently by the federal and state governments, whilst the constitution will allocate other powers such as education and ownership of property exclusively to states
- A federal government can pass legislation on a matter exclusively allocated to the states and the courts can strike that legislation down
Can the UK revoke the devolved powers it has given to its 4 countries?
- Yes, as it has delegated certain powers to devolved legislatures, legally it could revoke these powers
Can the UK government override devolved legislation?
Yes.
- As it is supreme, it has the power to override the devolved legislatures
- Although in practice, this could have very significant political consequences, it is legally possible to do so.
Always think legally it can be done, politically I am not sure they would want to…
What are reserved devolved matters in Scotland and Wales?
Think about matters that Scotland and Wales has reserved to deal with.
Scottish Government and Welsh Assembly have the power to legislate on all matters that are not expressly reserved to Westminister including
- Health
- Education
- Local Government
- Agriculture, Environment
Matters retained by UK Parliament
- Constitution
- Foreign policy
- Defence
- Consumer protection (think of Uncle G and Tobacco)
- Data protection
Note. Since the Scottish Referendum 2014, the UK government promissed to devote more powers to Scotland if they chose to remain. -
- Since 2015 it has given it the power to levy its own Scottish Landfill Tax, Building Transaction Tax (replace SDLT), Air departure tax is being proposed.
- Power to raise or cut income tax by 3p in the pound, set a different rate of income tax - scottish rate of income tax.
What power does the Scotland Act 1998 give to Scotland regarding powers of legislation?
Refer to the Scotland Act 1998 and the powers legislation. NOTE - Wales has very similar powers and restrictions.
Scottish Law is not Law if it:
- Would form part of the law and any territory other than Scotland
- Relates to reserved matters (foreign policy, constitution - reserved for Westminister)
- Modify certain enactments, including specified provisions of the Union with the Scotland Act 1706 and the Union of England Act 1707 (so far as they relate to the freedom of trade) specified provisions of the European Communities Act 1972, EUWA 2018 and HRA 1998.
- are incompatible with the ECHR and until the transition period ended, with European Law
- Would remove the Lord Advocate from their position as head of systems of the criminal prosecution and investigation of deaths
The Scotland Act 1998 provides that where a provision in an Act of the Scottish Parliament could be read outside its legislative competence, such a provision is to be read as narrowly as is required for it to be with competence, if such reading is possible.
What is the role of the First Minister in Scotland?
First Minister is appointed by the monarch and will normally be the leader of the largest party of the Scottish Parliament - SNP.
- First Minister (with Parliament’s agreement and approval of the monarch) appoints ministers and junior ministers
- First Minister (with parliaments agreement but appointed by the monarch) recommends the Lord Adovcate and the Solicitor-General for Scotland.
What is the Sewel Convention?
This applies to Scotland, Wales and Northern Ireland.
In Northern Ireland however, it does not have express statutory recognition.
- The convention that Wesminister would not normally legislate on devolved matters in Scotland without the consent of the Scottish, Welsh, Northern Ireland Parliament and this has been added in the provisions of the Scottish Act 1998 for example.
- This convention does not affect parliamentary sovreignty as affirmed in the case of R v Miller (No.1) by holding that the sewel convention despite its recognition in staute (e.g. Scottish Act), it created no legal obligation on the UK Parliament to seek the consent of the Scottish Parliament before passing legislation to leave the EU. It provides a political constraint on the Westminister Parliament, it is not the role of the courts to police it
- When the UK Parliament wants to legislate on a matter devolved to the Scottish Parliament - pursuant to the Sewel Convention - seek consent through legislative consent motions. Makes it easier as you won’t need two different types of Acts in Scotland / The UK.
Note. The Scottish Parliament has actually refused to pass a legislative consent motion regarding the UK’s withdrawl from the European Union. It refused to consent to the European Withdrawal Act 2018 and the European Union Withdrawal Agreement.
All 3 devolved legislatures refused consent to the 2020 Act, but the UK Parliament still proceeded with their enactment.
What is the one reserved matter which has not been devolved to Wales (but has been devolved to Scotland and Northern Ireland)?
- Criminal Justice
The Scottish Parliament and its first minister want to pass an Act allowing a referndum to be held on independence from the UK. Can the Scottish Parliament do this?
- The scottish parliament is not permitted to legislate on the constitution or the Union with England
- However, if the referndum was held merely to gauge public opinion on this issue, it might be legal. Legal opinion in 2013 was that the Scottish Parliament did not have the power to hold a referendum, but this has never been tested in court.
What is the legislative competence of Wales?
The Government of Wales Act 2006 makes it clear the UK Parliament retains its sovereign power to legislate. It cannot make laws on:
- Matters outside of Wales, not any laws contrary to the ECHR
- The Government of Wales Act itself, the Human rights Act 1998, European Communuites Act 1972, EUWA 2018
- ‘Reserved matters’ namely the constitution, which includes the Crown, the Union of Wales and England, the Parliament of the UK, the Civil Service, the registration of political parties, the courts and legal system, foreign affairs and defence
- More ‘detailed reserved matters’ - financial and economic matters, home affairs, trade and industry, economic matters, home affairs, traade and industry, energy, transport, social security, regulations of the professions
What is the difference between the devolution to Wales compared to the other 3 devolved countries?
- Wales has the same legal system as England and therefore the Welsh Government has no power to legislate in this area
- If the Act of Senedd is not within its legislative competence it is not law and the court may suspend the effect of the Act until the defect is corrected.
What is the Welsh Government legislative procedure?
Stage 1) Consideration and agreement of the bill’s general principles
Stage 2) Detailed consideration of the bill and any changes by a committee
Stage 3) Detailed consideration of the bill and any changes by the Senedd
Report stage: an optional stage to make amendments (if required)
Stage 4: a vote by the Senedd to pass the bill’s final text
The Senedd votes on a motion to pass the final text of the bill. Once the bill is passed,
it is normally sent for Royal Assent after about four weeks. The period of four weeks
provides a window for the law officers to refer the question of whether the bill is within the Senedd’s legislative competence to the Supreme Court.
Can the Welsh Government enact secondary legislation?
Yes.
- Welsh ministers may enact secondary legislation where authorised to do so by a Parent Act - may be an Act of Westminister Parliament or an Act of the Senedd.
- Similar to Westminister Parliament, Welsh secondary legislation will usually be subject to the affirmative procedure or negative procedure, the secondary legislation will not come into effect unless approved by Senedd.
- Secondary legislation subject to the negative procedure will come into force unless the members of the senedd object to a draft being laid before Senedd.
What is the position regarding Northern Ireland leaving/remaining in the UK?
It is a key issue for Northern Ireland whether peple want to remain in the UK or leave and join with Ireland - this depends on whether you are a Unionist or a Nationalist.
As part of the constitutional settlement for Nothern Ireland, the Irish Government agreed to amend the Irish Constitution to recognise that a united Ireland shall be brought about only by peaceful means with the consent of the people in both Northern Ireland the Irish Republic.
Section 1 of the Northern Ireland Act 1998 - UK Parliament enacted following the Good Friday Agreement, provides that Northern Ireland shall not cease to be part of the UK without the consent of a majority of the people of Northern Ireland voting in a referendum.
Unionst parties - remain in UK
Nationalist parties - leave and join Irelend (think of Cilian)
Nationalist parties win a majority in a general election and wish to leave the UK. The Northern Ireland Assembley passes an Act without holding a referendum, stating that Northern Ireland has left the UK and joined the republic of Ireland. What would be the effect of this Act?
It would not be law.
- The Assembly has no power to legislate to change a UK Act of Parliament. Only the UK Parliament can repeal or amend the Northern Ireland Act 1998.
