Devolution Flashcards
What is devolution?
The UK Parliament, sitting at Westminster, is the principal legislative authority in the UK.
‘Devolution’ refers to the grant by the UK Parliament of legislative powers to the ‘devolved’ legislatures and administrations (executives), which are:
Scottish Parliament – Scottish Government
Senedd (Welsh Parliament) – Welsh Government
Northern Ireland Assembly – Northern Ireland Executive
What is devolved legislation?
Devolved legislation is the legislation produced by the three devolved Parliaments or Assemblies of Scotland, Wales, and N. Ireland.
It has the characteristics of primary legislation produced by the Westminster Parliament, but it cannot be created without the enabling powers of an Act of the UK Parliament.
Devolution legislation:
· Scotland Act 1998
· Scotland Act 2016
· Govt. of Wales Acts 1998 and 2006, Wales Act 2017
· Northern Ireland Acts 1998 and 2006
What are ‘devolved matters’?
Devolved matters are the areas of government where decision-making has been delegated by the UK Parliament to the relevant devolved administration.
For example, education is a devolved matter in Scotland, as is the environment. This means Scotland can make its own laws on those areas (amongst many others).
However, all devolved laws are still subject to review by the Supreme Court, which also has the power to determine disputes over jurisdiction between the devolved administrations and Westminster.
What are ‘reserved matters’?
Reserved matters are decisions still taken in Westminster, even though they have effect in Scotland, Wales and Northern Ireland. Immigration, defence and foreign policy are examples of reserved matters.
The responsibility for fiscal policy and public expenditure across the whole of the UK also belongs to HM Treasury, i.e. central government at Westminster, though the Scottish and Welsh governments have had a degree of control over raising revenue in recent years.
Why devolve?
The process of devolution is designed to decentralise government power, and bring it closer to the people governed, so that local factors are better understood and given more prominence in decision-making.
It also reflects the importance of nationalist opinion in the constituent countries of the United Kingdom, evident in the strong performance of nationalist political parties, notably in Scotland and N. Ireland.
Devolution was introduced following public referendums in Scotland, Wales and Northern Ireland in 1997 and 1998 which endorsed the initiative.
The general rule is that Acts of (the UK) Parliament extend to Scotland…
…only if they deal with non-devolved, “reserved” matters, such as immigration.
Section 28(8) of the Scotland Act 1998 recognises that the UK Parliament will “not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”
This consent to legislate on a devolved matter is indicated by way of a ‘Legislative Consent Motion’ in the devolved Parliament.
Section 28(8) represents the statutory recognition of the Sewel Convention, but it is important to note that it does not give binding legal effect to it, as confirmed by the Supreme Court in Miller (No 1) [2017] UKSC 5.
Under s. 28(7) of the Scotland Act, it is explicitly stated that the power of the Scottish Parliament to pass Acts: “does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”. Ultimately, therefore, a lack of consent from the devolved parliament can be overridden at Westminster.
Unlike Scotland and Northern Ireland, Wales is…
…a separate legal jurisdiction from England. Nevertheless, applicable law may be different in England and Wales.
The Wales Act 2017 extended the powers devolved to Wales under the Government of Wales Act 2006 (‘GOWA’). Like Scotland, Welsh government is now based on a ‘reserved matters’ model.
Matters reserved to the UK Government are now listed in Schedule 7A to the GOWA 2006. The general rule is that Acts of (the UK) Parliament will only apply to Wales if they deal with reserved matters.
The Sewel Convention is also reflected in the GOWA (s.107(6)). The consent of the Senedd (known until 2020 as the National Assembly for Wales) is sought by way of Legislative Consent Motion, in the same way as in Scotland and Northern Ireland.
However, s. 107(5) makes it clear that the power of the Senedd to make Acts: “does not affect the power of the United Kingdom to make laws for Wales” – in other words, the equivalent of s. 28(7) of the Scotland Act.
How does Devolution work in Northern Ireland?
The devolved institutions of government in Northern Ireland were constituted by the Northern Ireland Act 1998.
The Northern Ireland Assembly is the devolved legislature. It is a unicameral body of 90 members who are democratically elected. It is often referred to as ‘Stormont’, because it sits at the Stormont Parliament Buildings near Belfast.
The Assembly selects the ministers of the Northern Ireland Executive, which is based on a power-sharing model, headed by a First Minister and Deputy First Minister from the two largest parties.
In the same way as Scotland and Wales, the general rule is that Acts of Parliament may only extend to Northern Ireland if they cover non-devolved matters, (e.g. immigration).
The Sewel Convention also applies to N. Ireland: an Act of the Westminster Parliament on a devolved matter should only extend to N. Ireland if the Assembly has passed a legislative consent motion.
However, section 5(6) of the Northern Ireland Act provides that the UK Parliament may still legislate on devolved matters without such consent.
What is the role of the Supreme Court in regards to devolution?
The Supreme Court is the final court of appeal for civil cases in the UK. It also has jurisdiction under the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006 (as amended by the Wales Act 2017), to resolve questions of whether legislation by the devolved administrations goes beyond the scope of their legislative competence.
This is one of the key constitutional roles of the Supreme Court. The Supreme Court will look at the terms of the devolved legislation and decide whether it falls within the ‘reserved matters’ that are outside the competence of the devolved administration. If that is the case, the devolved legislation is not law.
Take national security as an example. This is a reserved matter across the devolved legislations. In the highly improbable event that, say, the Senedd decided to legislate on a national security matter, this legislation would not be treated as law.
That is because the Senedd is not, under the terms of the Government of Wales Act 2006 (as amended by the Wales Act 2017) permitted to legislate in this area.
The question of the legal effect of Acts of the UK Parliament / devolved legislation can be broken down like this:
Which of the devolved administrations is in issue?
This will tell you which of the Acts of Parliament to look at.
What matter or area does the legislation concern? (e.g. roads, railways, housing)
Is that matter listed as a ‘reserved matter’ in the relevant Act?
Reserved matters will be listed in one of the Schedules to the relevant Act.
If it is not explicitly listed as a ‘reserved matter’, could it be interpreted as falling within a reserved matter?
If so, then legislation passed by the UK Parliament will have legal effect in the devolved administration. Conversely, any legislation passed by the devolved administration will not have legal effect.If the matter is not deemed as a ‘reserved matter’, legislation passed by the UK Parliament will still have legal effect in the devolved administration.
However, the convention is that the consent of the devolved administration should have been sought and indicated by way of a Legislative Consent Motion.
The responsibility for fiscal policy and public expenditure across the whole of the UK belongs to HM Treasury, but…
…devolved administrations set their own budgets.
‘Reserved matters’ are areas of government over which decisions are still taken by Parliament at Westminster, even though…
…they have effect in Scotland, Wales and Northern Ireland.
