Devolution Flashcards
How does Bogdanor describe devolution?
‘Devolution may be defined as the transfer of powers from ministers and Parliament to a subordinate elected body. Its purpose is to provide some degree of self-government on a territorial basis, falling short of independence or of a federal system of government, and also to secure decentralisation and the dispersal of power. Until the 1920s, however, devolution, as we now understand it, was generally called Home Rule.’
What were Labour’s six aims for devolution?
- To promote the decentralisation of power
- To advance devolution not federation
- To strengthen the union
- To allow communities greater control over decision-making
- To ensure high standards of public service
- To increase overall accountability in the political process
What were the first three devolution statutes and what are they now?
Scotland Act 1998 - Scotland Act 2016
Government of Wales Act 1998 - (see Government of Wales Act 2006) Wales Act 2017
Northern Ireland Act 1998 - Northern Ireland (Stormont Agreement and Implementation Plan) Act 2016
Talk about legislative competence in Scotland.
Parliament has power to legislate but legislation must fall within its legal competence to be valid.
Person introducing Bill must be satisfied that it is within legislative competence.
Westminster power to legislate for Scotland is not affected but it will not normally legislate for devolved matters without the consent of the Scottish Parliament.
Invalid if: Forms part of the law of another country or territory; Related to reserved matters e.g. national security;
Incompatible with Convention Rights or with EU Law
Name 7 reserved areas for Scotland.
- Aspects of the Constitution
- Registration and funding of political parties
- Foreign Affairs (but note observing and implementation international obligations are not reserved)
- Civil Service
- Defence
- Treason
- List of specific reservations under general headings – immigration, nationality, national security
Name 5 devolved areas for Scotland.
- Education
- Health
- Local Government
- Housing
- Justice
Talk about Legislative Devolution in Wales before 2017. How has this changed?
The ‘conferred powers’ model - It could legislate on defined matters (and this list could be extended). Between 2007 – 2011, the Assembly could pass a category of Welsh laws called ‘Assembly Measures’
Move to the ‘reserved powers’ model (as in Scotland – see now Wales Act 2017)
Name 8 reserved areas for Wales.
- Aspects of the Constitution
- Civil Service
- Political Parties
- Single legal jurisdiction England and Wales
- Tribunals
- Foreign Affairs
- Defence
- List of specific reservations
What four things will invalidate law made by the Welsh government?
- Incompatible with Convention rights or with EU law
- Relates to reserved rights
- Extends other than to Wales and England
- Breaches relevant restrictions, for example, cannot modify Human Rights Act 1998
How is the devolution system different in Northern Ireland?
Assembly has general legislative competence over ‘transferred matters’ but no competence over ‘excepted matters’ and there are also ‘reserved matters’ which rest with Westminster
A ‘transferred matter’ is any matter that is not an ‘excepted or reserved matter’
Name four reserved areas for Northern Ireland.
- Country or territory other than Northern Ireland;
- Convention rights
- EU law
- discrimination on the ground of religious belief or political opinion
Talk about AXA General v Lord Advocate (2011), judicial review and devolution.
As for the appellants’ common law case, I would hold, in agreement with the judges in the Inner House (2011 SLT 439, para 88), that Acts of the Scottish Parliament are not subject to judicial review at common law on the grounds of irrationality, unreasonableness or arbitrariness. This is not needed, as there is already a statutory limit on the Parliament’s legislative competence …it would also be quite wrong for the judges to substitute their views on these issues for the considered judgment of a democratically elected legislature unless authorised to do so, as in the case of the Convention rights, by the constitutional framework laid down by the United Kingdom Parliament.
In principle, Acts are subject to judicial review on common law grounds via the principle of the rule of law and common law constitutional rights but not on the grounds of irrationality, unreasonableness or arbitrariness.
What steps did Lord Hope lay down in Imperial Tobacco Ltd v Lord Advocate (Scotland) (2012) for interpreting the devolution statutes? What case was this followed in?
First, the question of competence must be determined in each case according to the particular rules that have been set out in section 29 of and Schedules 4 and 5 to the 1998 Act.
Second, those rules must be interpreted in the same way as any other rules that are found in a UK statute. The system that those rules laid down must, of course, be taken to have been intended to create a system for the exercise of legislative power by the Scottish Parliament that was coherent, stable and workable. (emphasis added)
Third, the question whether measures passed under devolved powers by the legislatures in Wales, Scotland and Northern Ireland are amenable to judicial review, and if so on what grounds, was considered in AXA General Insurance Company Ltd v Lord Advocate (2011). This was followed in Re Agricultural Sector (Wales) Bill (2014).
Name the majority and minority reasoning for the ruling that the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill (2015) was beyond Wales competence.
Majority reasoning: that it fell outside legislative competence as not sufficiently related to the organisation and funding of the NHS (and incompatible with Convention rights)
Minority reasoning: that the organisation and funding of NHS did include a power to raise funds for the NHS through charging patients but by retrospectively overriding or extending existing insurance policies it fell outside legislative competence
What did the Supreme Court decide in: R (Miller and another) v Sos for Exiting the European Union (2017)?
Did the government need the consent of devolved powers to trigger Article 50? The United Kingdom Government may not initiate withdrawal from the EU without an Act of Parliament of the UK Parliament permitting it to do so. The High Court previously ruled that the Crown’s foreign affairs prerogative may not be used to nullify rights that parliament has enacted through primary legislation. This case was seen as having constitutional significance in deciding the scope of the royal prerogative in foreign affairs. The Supreme Court also ruled that devolved legislatures in Scotland, Wales and Northern Ireland have no right to veto the act. The Court stated that this was a political issue and the courts only deal with legal ones.
