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FLK1 - Constitutional, Administrative & EU Law > Devolution > Flashcards

Devolution Flashcards

1
Q

What is a unitary state? What does this mean for the UK?

A

A country where the central government has most or all of the governing power. This is the opposite to a federal state.

This means Parliament can legislate over all four countries, even though it has devolved some legal powers.

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2
Q

What does the Sewel Convention stipulate?

A

Parliament will not normally legislate on a matter that is devolved to the Scottish Parliament, National Assembly for Wales or Northern Ireland Assembly unless they consent

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3
Q

Explain the Scotish Parlaiment & Government’s position in regard to the UK constitution

A

Following a positive referendum in 1997, Scottish devolution began.

s63A Scotland Act 1998 (added by Scotland Act 2016) provides that the Scottish Parliament and government are a permanent part of the constitutional arrangements of the UK.

Neither can be abolished unless there is a positive referendum of the Scottish people.

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4
Q

What established the Scottish Parliament?

A

The Scotland Act 1998

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5
Q

Explain the officers of Scottish Parliament

A

There are regional and constituency members of Scottish Parliament

Scottish Parliament has a Presiding Office (equivalent to the Speaker in HOC)

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6
Q

Who can vote in Scottish Parliament elections?

A

Anyone 16 and over

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7
Q

How often do Scottish Parliament elections take place?

A

Every 5 years, unless there is an ‘extra ordinary general election’

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8
Q

When is an early (extraordinary) election called? (re Scottish Parliament)

A

An extraordinary election can be held of the Scottish Parliament where:
1. 2/3 of the total number of Members vote in favour of a motion that SP is to be dissolved; or
2. The SP is unable to appoint a first minister within 28 days of a general election or the office of the First Minister becoming vacant

An extraordinary election will be in addition to a scheduled upcoming election, unless it is within 6 months on one another

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9
Q

What must happen if the First Minister loses a vote of no confidence?

A

they must resign

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10
Q

What is a First Minister?

A

The First Minister is head of the Scottish Government and has ultimate responsibility for all policy and decisions

It is usually the leader of the largest party in Scotland

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11
Q

What power does Scottish Parliament have?

A

Under the Scotland Act 1998, it can pass primary legislation.

Once it has received Royal Assent, it is known as an Act of Scottish Parliament

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12
Q

What is the reserved powers model?

A

The devolved states can legislate on all matters which have not been reserved for UK Parliament

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13
Q

What issues are reserved for UK Parliament? (21)

A

The key ones are defence, immigration, foreign affairs
1. benefits (some aspects)
2. betting and gambling
3. broadcasting
4. constitution (some aspects)
5. consumer protection policy
6. currency
7. data protection
8. defence and national security
9. equality legislation (most aspects)
10. energy (most aspects)
11. elections to the UK Parliament
12. employment law and industrial relations
13. financial services
14. foreign affairs
15. immigration, asylum and visas
16. nationality and citizenship
17. postal services
18. taxation (some aspects)
19. telecommunications
20. trade and industry
21. transport (some aspects)

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13
Q

What elements of taxation are devolved to the Scottish Parliament?

A

o Tax-raising powers
o Levy its own landfill tax
o Stamp duty tax
o Air departure tax
o Set a different rate of income tax
o Set tax band thresholds

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14
Q

What is meant by legislative competence?

A

Legislative competence is the authority to make and enact laws that are binding on a population or jurisdiction.

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15
Q

What happens if an Act of Scottish Parliament or Act of Senedd is outside of their legislative competence?

A

It will not be law

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16
Q

When checks are in place to ensure a new Scottish bill is in accordance with their legislative competence?

A

The minister in charge must make a statement that in their view the provisions of the bill are within the SP’s legislative competence

The Presiding Officer must also make a statement. However, they can also state if they think the bill is outside of the legislative competence

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16
Q

What is the scope of Scotland’s legislative competence?

A

s29 Scotland Act 1998. Scottish Parliament…:

  1. can only legislate for or in relation to Scotland
  2. cannot legislate in relation to the “reserved matters”
  3. cannot modify certain enactments i.e. HRA 1998, provisions under the Acts of Union, UK internal trade and EU Withdrawal Act
  4. legislation must be compatible with the ECHR
  5. it cannot remove the Lord Advocate from his or her position as head of the system for criminal prosecutions and the investigation of deaths
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17
Q

What effect does the Presiding Officer’s statement have regarding legislative competence of a bill?

A

If they state they do not think the bill is within SP’s / Senedd’s legislative competence, this does not prevent the bill from proceeding

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18
Q

What is the position regarding interpretation of Acts of the devolved states?

A

If a provision of the could be read as being outside the legislative competence, it should be read as narrowly as possible so that it is within the legislative competence (if possible)

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18
Q

If there are concerns a bill is outside of a state’s legislative competence, what may happen?

A

The Attorney General, Counsel General or Advocate General can refer a question to the supreme court to decide whether any of the provisions are outside of the competence (which is not subject to proceedings)

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19
Q

When was the Scottish Government established?

A

Under Scotland Act 1998

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20
Q

Who appoints the first minister?

A

The Monarch

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21
Q

What does the Scottish Government consist of and how are officers appointed?

A

o Headed by the First Minister. The First Minister is appointed by the Monarch after being recommended by the Scottish Parliament.

o Ministers and junior ministers. Appointed by the First Minister with Scottish Parliaments approval and approved by the Monarch.

o The Lord Advocate and Solicitor-General for Scotland (equivalent to the Attorney General). They are recommended by the First Minister and appointed by the Monarch.

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22
Q

What is a section 35 order / s114 order?

A

The Secretary of State for Scotland (s35) and Secretary of State for Wales (s114) (both part of the UK Government) has the power to veto a bill that has been submitted for Royal Assent (even if it covers a devolved matter) if they reasonably believe the bill:
o would have an adverse effect on a reserved matter
o would have an adverse effect on the operation of law in England
o would be incompatible with international obligations or in the interests of national security

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23
Q

Example of section 35 order

A

the Scottish Secretary of State exercised this power in relation to the Gender Recognition Reform Bill (Scotland).

The bill would have made it easier for people to obtain a gender recognition certificate.

Gender recognition is a devolved matter, but equal opportunities is not.

The UK Gov felt there needed to be the same system in England and Wales to used a s35 order.

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24
Q

What was held in R (Miller) [2005]?

A

the Sewel Convention created no legal obligation for UK Parliament to seek consent of Scottish Parliament before passing legislation to leave the EU

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24
Q

What is the relationship between the Sewel Convention and Scotland Act 1998 / Wales Act 2017?

A

The Sewel Convention is recognised in both pieces of legislation i.e. ‘the UK Parliament will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament / the Senedd’

However, both Acts include provision to protect UK parliamentary sovereignty - ‘Scottish Parliament / the Senedd does not affect the power of the UK Parliament to make laws for Scotland/Wales’

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25
Q

When the UK Parliament seek to obtain consent under the Sewel Convention, what is the process?

A
  1. UK Parliament will attempt to obtain consent before enacting the legislation.
  2. If agreed, the Scottish Parliament will give consent through a Legislative Consent Motion
  3. UK Parliament will enact the legislation irrespective of whether or not Scottish Parliament agree
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26
Q

What are branches of power in Scotland? How were they created?

A

Created under the Scotland Act 1998 following positive referendum:

Scottish Parliament
Scottish Government

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27
Q

How was the national assembly of wales created?

A

following positive referendum, the Government of Wales Act 1998 was created which provided for the establishment of the National Assembly of Wales and gave it devolved powers

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28
Q

What is the National Assembly of Wales split into?

A

o The Senned (i.e. Welsh Parliament)
o The Welsh Government

29
Q

Explain the National Assembly of Wales in relation to the UK Constitution

A

The GWA 2006 declares these to be a permanent part of the UK’s constitutional arrangements and they can only be abolished following a referendum

30
Q

Give an overview of officers of the Senned and how they come into post

A

Members are known as ‘Members of the Senedd’

There are 60 members:
o 40 represent the same Welsh constituencies used in UK P
o 20 represent the electoral regions in Wales

The system of proportional representation is used

31
Q

Who can vote in Senedd elections?

A

anyone aged 16 and over

32
Q

When is an early (extraordinary) general election called? (re Senned)

A

An extraordinary election can be held of the Senedd where:
1. 2/3 of the total number of Members vote in favour of a motion that the Senedd is to be dissolved; or
2. The Senedd is unable to appoint a first minister within 28 days of a general election or the office of the First Minister becoming vacant

An extraordinary election will be in addition to a scheduled upcoming election, unless it is within 6 months on one another

33
Q

How often are Senedd general elections called?

A

Every 5 years (unless there is an extraordinary election)

34
Q

What are Welsh Acts called?

A

Acts of the Senedd

35
Q

What power does the Senedd have?

A

It can pass primary legislation

36
Q

How are the reserved powers different between Scotland and Wales?

A

Criminal justice is largely devolved in Scotland but not Wales

37
Q

What are Members Bills in relation to the Senedd? What legislative process do they follow?

A

They are the equivalent to Private Member’s Bills

The follow the same legislative process as other Senedd bills

37
Q

Can Welsh ministers introduce secondary legislation?

A

Yes, where they are authorised by a parent act to do so.

The parent act can be an Act of Parliament or Act of the Senned

The Act will state whether it is subject to the affirmative resolution procedure or negative resolution procedure

38
Q

What is the scope of Wales’ legislative competence?

A

The Senedd…:

  1. can only legislate for or in relation to Wales
  2. cannot legislate in relation to the “reserved matters”
  3. cannot modify certain enactments i.e. HRA 1998, provisions under the Acts of Union, UK internal trade and EU Withdrawal Act
  4. legislation must be compatible with the ECHR
  5. it cannot remove the Lord Advocate from his or her position as head of the system for criminal prosecutions and the investigation of deaths
39
Q

What effect does the Presiding Officer’s statement have regarding legislative competence of a bill?

A

If they state they do not think the bill is within SP’s legislative competence, this does not prevent the bill from proceeding

40
Q

When checks are in place to ensure a new Welsh bill is in accordance with their legislative competence?

A

The minister in charge must make a statement that in their view the provisions of the bill are within the Senedd’s legislative competence

The Presiding Officer must also make a statement. However, they can also state if they think the bill is outside of the legislative competence

41
Q

How do Scottish and Welsh Bills become an Act of Scottish Parliament / the Senedd?

A

Scottish Parliament and the Senedd follow a similar process:

The bill is introduced by a Government Minister. The Government present the bill to Scottish / Welsh Parliament.

Stage 1 - consideration:
Consideration and agreement of the Bill’s general principles. Scottish / Welsh Parliament debates the bill and decides if it should go to the next stage or be rejected.

Stage 2 - committee amends
Detailed consideration (i.e. line by line scrutiny) by a committee of the bill. Amendments are suggested, debated and voted upon by the committee.

Stage 3 - Scottish / Welsh Parliament amends
Detailed consideration of the bill by Scottish / Welsh Parliament. Amendments are suggested, debated and voted upon by all of the respective Parliament.

Stage 3a - report stage
The minister in charge of the bill can request the respective Parliament undertake a further amendment stage, the ‘report stage’. This would be done if there have been significant amends in stage 3. The Parliament can agree or refuse. This stage involves reviewing, debating, voting the amends.

Stage 4 - vote by the Scottish / Welsh Parliament
All of the Parliament vote on whether or not to pass the bill. If the bill is passed, it is sent for Royal Assent after about 4 weeks. It will be passed by Royal Assent if there is no challenge.

42
Q

Why is 4 weeks given between the passing of the bill and it being sent for Royal Assent?

A
  1. the Counsel General/Advocate General or Attorney General can refer the question of whether the Bill, or any provision of the Bill, are within Scotland/Wales’ legislative competence to the Supreme Court for a decision
  2. the Secretary of State for Wales/Scotland may make an order prohibiting the Bill from being sent for Royal Assent (s35 in Scotland & s114 in Wales)

If no such challenge is made to the Bill, it will move on to Royal Assent.

43
Q

What does the Welsh Government consist of and how are officers appointed?

A

o Headed by the First Minister. The First Minister is appointed by the Monarch after being nominated by the Senedd.

o 12 ministers and deputy ministers. Appointed by the First Minister and approved by the Monarch.

o Counsel General (equivalent to the Attorney General). They are recommended by the First Minister and appointed by the Monarch.

44
Q

What is the Good Friday Agreement?

A

In 1998 following the troubles, the Irish Government agreed to amend the Irish Constitution to recognise that a United Ireland shall be bought about only by peaceful means with the consent of all of those in Northern Ireland and the Irish Republic

45
Q

How is the position of the Good Friday Agreement in relation to statute?

A

S1 Northern Ireland Act 1998 provides that NI shall not cease to be part of the Good Friday Agreement without a positive referendum of the NI people

46
Q

What are the main elements of the Good Friday Agreement?

A
  1. For a democratically elected assembly with a power-sharing executive
  2. North/south ministerial council - this deals with policies on matters of mutual interest
  3. British-Irish council - this comprises of representatives from the British and Irish governments, devolved administrations (i.e. NI, Scotland and Wales and the channel islands).
47
Q

What is the Northern Ireland Assembly and how did it come about?

A

This is the devolved legislature for Northern Ireland.

It was established under the Northern Ireland Act 1998

The Northern Ireland Act 1998 also created the power-sharing executive

48
Q

What is the position in relation to the power-sharing executive?

A

Northern Ireland agreed to re-enter this in 2024, after a period of suspension

49
Q

What is the composition of the Northern Ireland Assembly and how are they elected?

A
  • Comprises of 90 members known as Members of the Legislative Assembly
  • They are elected under a single transferable vote form of proportional representation
50
Q

How often do votes of the Northern Ireland Assembly take place?

A

every 5 years

51
Q

What power does the Northern Ireland Assembly have?

A

The power to enact primary legislation

52
Q

What are Northern Irish Acts called?

A

Acts of the Northern Ireland Assembly

53
Q

What can the Northern Ireland Assembly legislate over?

A

NIA can legislate over all ‘transferred matters’.

These are all matters apart from reserved matters and excepted matters

54
Q

When is an early (extraordinary) general election called? (re Northern Ireland Assembly)

A

An extraordinary election can be held of the Senedd where:
1. 2/3 of the total number of Members vote in favour of a motion that the NIA is to be dissolved; or
2. The NIA is unable to appoint a first minister within 14 days of a general election or the office of the First Minister becoming vacant

An extraordinary election will be in addition to a scheduled upcoming election, unless it is within 6 months on one another

55
Q

What are ‘excepted matters’?

A

In relation to the NIA, these are areas which are legislated by UK Parliament i.e. defence, foreign affairs and income tax

56
Q

What are reserved matters in relation to the NIA?

A

These are areas NIA with the consent of the Secretary of State and they may be devolved in the future. These include:
o Firearms
o Explosives
o Financial services
o Pensions regulation
o Broadcasting
o Disqualification from the assembly
o Consumer safety
o IP

57
Q

When checks are in place to ensure a new NIA bill is in accordance with their legislative competence?

A

The minister in charge must make a statement that in their view the provisions of the bill are within the NIA’s legislative competence

The Presiding Officer must refer the bill to the Secretary of State for Northern Ireland if they consider it to be an excepted or reserved matter

58
Q

What is the legislative competence of the NIA?

A

The NIA cannot pass any bills which:
1. refer to excepted or reserved matters (unless the Assembly asks for special permission from the Secretary of State for Northern Ireland);
2. contradict European law, or the European Convention of Human Rights (ECHR); or
3. discriminate against any person because of their religious belief or political opinion.

59
Q

What is the relationship between the Sewel Convention and NIA 1998?

A

The Sewel Convention applies to NI but does not have express statutory recognition

60
Q

What is the Northern Ireland Executive?

A

The Northern Ireland Executive runs the devolved government in Northern Ireland.

61
Q

What is the composition of the Northern Ireland Executive?

A

The NIE consists of three political designations to ensure representation:
o Nationalist
o Unionist
o Other

It is made up of:
o the First Minister
o the deputy First Minister
o two Junior Ministers
o eight other government ministers

62
Q

What is the timescale for appointment of the NIE? What are the consequences if this doesn’t happen?

A

Officers must be appointed within 14 days of the Assembly election

If this doesn’t happen, a date for another extraordinary election must be proposed

63
Q

How does the question of whether devolved legislation is outside of the respective legislative competence come before the Supreme Court?

A
  1. The question is referred by a devolved or UK law officer after the bill is passed but before Royal Assent
  2. Through an appeal from certain higher courts (inc. courts in the devolved states)
  3. A referral from certain appellate courts
63
Q

How are the NIE ministers appointed?

A

First minister (i.e. the nominee of the largest political party)

Deputy first minister (i.e. the nominee of the 2nd largest political party)
 The FM & DFM hold office jointly and have equal status.
 This mean if one ceased to hold office, then they both do.

Other ministers
 This cannot exceed 10 without SOS permission
 They are appointed based on the number of seats held by political parties (with the exception of the MOJ)

64
Q

Example of the Attorney General referring a bill to the Supreme Court

A

Wales tried to pass a law relating to the wages in agriculture. They argued this was within their competencies as it was related to agriculture (not reserved).

The AG disagreed and argued that it related to wages and employment which is reserved.

The UKSC held that it related to agriculture so was within their competencies. It didn’t matter that it overlapped into another category.

65
Q

What has the Supreme Court said about the challenge to devolved legislation?

A

Challenged to devolved legislation can normally only be on the basis that they exceed legislation competence (i.e. they are about a reserved matter or violate the ECHR). They cannot be challenged on common law grounds i.e. rationality.

65
Q

When is devolved act is before the UKSC, what will they look at? Give an example.

A

UKSC will look at the purpose of the acts

Example - two pieces of Scottish legislation relating to the ban of cigarettes. C applied for JR as the sections of the act related to ‘the sale and supply of goods to consumers’ which is a reserved matter. This failed in two courts and was then appealed to the SC. The aim of both acts was to reduce smoking, so it considered it did not have a connection of any reserved matter and thus within Scotland’s legislative parliament.

66
Q

What is in place to coordinate the relationship between the devolved administrations?

A

A memorandum which creates the Joint Ministerial Committee and sub-committees of the JMC

Dispute Resolution Protocol

67
Q

What does the Joint Ministerial Committee consist of?

A

Ministers from the UK and devolved states

The PM and FMs attend when the JMC meets in plenary form (i.e. when everyone attends)

68
Q

What does the Joint Ministerial Committee consider?

A

o Non-devolved matters that affect devolved responsibilities (and vice versa)
o Devolved matters that may affect different parts of the UK
o Keep arrangements for liaison under review
o Consider disputes between governments

69
Q

How often does the Joint Ministerial Committee meet?

A

This should be annually but this doesn’t always happen

70
Q

What are the sub committees of Joint Ministerial Committee?

A

o JMC Europe
o JMC EU Negotiations - this was set up to discuss Brexit

71
Q

When is the dispute resolution protocol used?

A

To deal with disputes regarding the funding of devolved governments. Not commonly used.

72
Q

If there is an Act of Parliament in existence, can a devolved state make devolved legislation on the same subject-matter?

A

Yes, the devolved state’s Parliament has power to amend Acts of the UK Parliament unless the subject-matter of the bill is outside its legislative competence

FLK1 - Constitutional, Administrative & EU Law (10 decks)

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