Intro to Devolution Flashcards
describe UK constitutional law
the law which creates, regulates, empowers and controls the institutions and processes of government
describe devolution
branch of UK constitutional law concerned with territorial distribution, exercise and control of public power
what are the 4 main regional devolutions and their acts
-Scotland + Scotland Act 1998
-Wales + Gov of Wales Act 1998/2006
-Northern Ireland + NI Act 1998
-English regions
what was the UK government like before 1997 New Labour Gov
-one government and one parliament in the UK
what is the UK government like today after 1997 New Labour gov
-Wales and Scotland also have their own parliament and government
-Northern Ireland have their own assembly and executive
what do Masterman and Murray, 2022 argue about devolution
-can be seen as an attempt to recognise the complexity of the UK as a country by giving each of its smaller constituent parts some degree of
legislative and administrative autonomy’
when did the devolution process begin
-1997 with New Labour gov
describe the beginning of the process of devolution (6)
-part of a wider set of constitutional reforms
-bilateral
-asymmetrical but convergent
-created through acts of parliament
-endorsed by referendums
-dynamic and evolutionary process
which of the original devolution statutes has a new statute
-Government of Wales Act 1998 –> Government of Wales Act 2006
give 5 reasons for devolving power
-growing demands for autonomy
-recognition of multiple national identities
-democracy
-preserve the Union
-preserve parliamentary sovereignty
give 4 reasons why devolution of power was needed in NI
-prior experience of legislative devolution (1921-72)
-ending civil conflict (‘The Troubles’)
-key pillar of peace process
-Stand One of Belfast / Good Friday Agreement 1998
why was legislative power not devolved further in England (initially) (4)
-size
-differing strength of regional identities
-relationship between English and UK Parliaments?
-lack of popular support for an English gov+parl AND regional gov (eg failed NE Assembly Referendum 2004)
what is an example of lack of popular support for regional government/ devolution in England
-failed North East Assembly referendum 2004
give 6 key features of Scottish devolution
-Scottish Parliament (129 members)
-Scottish Government
-Most powerful (and stable) settlement
-expanded by Scotland Acts 2012 and 2016
-tax-raising and borrowing powers
-powers over (some) social security benefits
give 6 key features of Welsh devolution
-Welsh Parliament/ Senedd Cymru w/ 60 elected members (96 in 2026 election due to Senedd Cymru (Members and Elections) Act
-Welsh Government
-Constant change (Gov of Wales Act 2006, Wales Act 2014 and 2017)
-most limited devolution settlement
-some tax raising and borrowing powers
-remains part of England and Wales legal system
give 5 key features of NI devolution
-NI Assembly (parl) (90 members)
-NI Executive (gov)
-power-sharing / consociational executive (NIA 1998, s.16A)
-process for unification with Ireland (NIA 1998, s.1 & Sch 1)
-significant periods of suspension (2000; 2002-07; 2017-20; 2022-24)
give 4 key features of English devolution
-NO legislative devolution (yet)
-UK Gov + Westminister Parliament = de facto English gov and parl
-regional (administrative) devolution, but patchwork eg London Mayer and Assembly, Combined Local Authorities
-‘English Votes for English Laws’ (EVEL) (2015-11) (only English MPs would sit for english issues, binned by BoJo)
give 5 examples of regional (administrative) devolution
-London Mayor and Assembly
-Combined Local Authorities/ Metro Mayors
-Construction Act 2009
- Cities and Local Government Devolution Act 2016
-English Devolution Bil
what are the powers granted to devolutions called
-legislative competences
what are the two types of powers/ legislative competences
-devolved competences (granted to devolved regions)
-reserved competences (reserved for westminister for devolved regions to follow)
how are powers/legislative competences determined
according to the rules of the act in question
– Imperial Tobacco v Lord Advocate (2012) UKSC 61
what case gives the legal rule that powers must be determined according to the rules of the Act in question
-Imperial Tobacco v Lord Advocate (2012) UKSC 61
what power does the UK Parliament retain despite legislative competences
-UK Parliament retains power to legislate on any matter
where in each of the devolution acts says the UK Parliament retains the power to legislate on any matter
-Scotland Act 1998 s.28(7)
-NI Act 1998 s.5(6)
-Government of Wales Act 2006 s.107(5)
give 3 examples of devolved powers/ competences
-health
-education
-housing
give 3 examples of reserved powers/competences
-constitution
-foreign affairs
-defence
what is s.28(1) of the Scotland Act 1998
-Parliament may make laws to be known as the Acts of Scottosh Parliament
what is s.29 Scotland Act 1998
-provisions of Acts of the Scottish Parliament are ‘not law’ of they:
- concern matters outside Scotland
- Relate to reserved matters
- relate to ‘protected enactments’
- are incompatible with ECHR rights
what are the equivalent sections in the GOWA 2006 and NIA 1998 to the SA 1998 s.29
-GOWA 2006 s.108A
-NIA 1998 s.6
essentially, what does s.29 SA 1998, s.108A GOWA 2006 and s.6 NIA 1998 mean
-they do not require devolved legislation to change law on reserved matters (??)
what is the Sewel Convention (4)
-aka ‘legislative consent convention’
-the UK Parliament usually wont legislate in regards to devolved issues without approval
-practice: ‘legislative consent motion (LCMs)
-key constraint on parliamentary sovereignty
give the 2 statutory basis for the Sewel Convention in Scotland and Wales
-SA 1998 s.28(8)
-GOWA 2006 s.107(6)
is the Sewel Convention non justiciable (3)
-non justiciable
-purely political, courts cannot act on it
- Miller I (2017) UKSC 5
what is the authority for the Sewel Convention being non justiciable
-Miller I (2017) UKSC 5
what are the 4 methods/ powers for managing disputes
-Informal political resolution (within or between
political parties)
-Formal intergovernmental mechanisms
(Intergovernmental Relations Review 2021)
-Referral to UKSC
SA 1998, s.33; NIA 1998, s.11; GOWA 2006, s.112
-UK Government ‘veto’
SA 1998 s.35; NIA 1998 s.14; GOWA 2006 s.114
what are the statutes referring to referral to the UKSC (3)
-SA 1998, s.33;
-NIA 1998, s.11;
-GOWA 2006, s.112
what are the 3 statutes that refer to UK Gov ‘veto’
-SA 1998 s.35;
-NIA 1998 s.14;
-GOWA 2006 s.114
Powers: devolved / reserved boundary ?????
Example 1:
Continuity Bill Reference [2018] UKSC 64
Decision:
A Scottish Bill purporting to regulate effects of
EU law within devolved areas after Brexit did
not ‘relate to’ the reserved matter of
‘international relations’ ????
Powers: devolved / reserved boundary ???????
Example 2:
Scottish Independence Referendum Bill
Reference [2022] UKSC 31
Decision:
A Scottish Bill which made provision for an
advisory referendum on Scottish independence
‘related to’ the reserved matters of the Union
and the UK Parliament
?????
what are the 2 constitutional protections???
-1) Sewel Convention
-2) Permanence clauses
what is the permanence clause in the SA 1998
-s.63A SA 1998
-makes Scottish Parl + Gov permanent part of UK’s constitutional arrangements
-signifies UK Parl + Gov’s commitments to Scottish Parl+Gov
-cannot be abolished unless Scots voted to in a referendum
what is the permanence clause in GOWA 2006
-GOWA 2006 Pt A1 (as amended by Wales Act 2017)
give 6 challenges to devolution
-Democratic ‘deficit’ (Wales and Scotland would often vote labour against rest of country, now they have their own to vote for)
* Parliamentary sovereignty
* EU withdrawal / Brexit
* Sewel breakdown
* Devolved / reserved boundary
* Territory-specific challenges
Northern Ireland Protocol
Referendum deadlock in Scotland
Jagged edge of justice in Wales
give 3 examples of territory specific challenges to devolution
-Northern Ireland Protocol
-Referendum deadlock in Scotland
-Jagged edge of justice in Wales
what problems does the democratic deficit concern (7)
Multiple facets:
Sustained electoral divergences between UK’s
constituent parts
English dominance
Non-English representation and influence at UK
level
* Key justification for devolution
* Exacerbated by Brexit vote and process
* Remains key reason for support for
independence (Griffiths, 2022)
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how does Dicey describe parliamentary sovereignty
-UK Parl’s right to ‘make or unmake any law’
how do Loughlin and Tierney 2018 describe Parliamentary sovereignty
-an ‘article of faith’ among Westminister’s political class
who determines UK regulatory standards post Brexit (5)?????????
-Devolution shaped by UK’s EU membership
* Devolution interacted with EU law e.g. in agriculture,
fisheries, environment, food standards etc.
* Acts of devolved legislatures were ‘not law’ if
incompatible with EU law
* EU rules provided devolution with common rules /‘scaffolding’
* A ‘unitary state’ went into the EU; a devolved / ‘quasi-
federal’ state came out
what did the UK Internal Market Act 2020 do
Introduces 2 ‘market access’ principles to UK law
Mutual recognition
Non-discrimination
-if product is made in accordance to standards in one area of country, it must be accepted everywhere in UK
-empowers UK Gov to spend in devolved areas
‘UK Shared Prosperity Fund’
* Enacted without consent of devolved institutions
* Signals ‘death of devolution’ (Morgan & Wyn
Jones, 2023)
what do Morgan and Wyn Jones 2023 argue about the UK Internal Market Act 2020
- Signals ‘death of devolution’
between 1999-24 how many times has devolved legislative consent been withheld
-28 UK acts of Parliament
-19 consent refusals between 2019-2024
-Institute for Government 2024
the devolved / reserved boundary??????
-parliamentary sovereignty a constraint on
devolved law-making
UNCRC Bill Reference [2021] UKSC 42
‘Political consequences’ of devolved
legislation may place it outside competence
Scottish Independence Referendum Bill
Reference [2022] UKSC 31
what is the background of the NI Protocol
-Belfast / Good Friday Agreement (1998) agreed in context
of EU membership
-Agreement re need to avoid land border in Ireland (both part of EU allowed free trade and less political turmoil)
-UKGov choice:
1) ‘Softer’ UK-wide Brexit, OR
2) Differentiated solution for NI (chose this) (unionists disliked as required border between NI and rest of Britain)
what is the NI protocol
-Protocol establishes differentiated settlement
based on NI’s continued alignment with (some) EU
rules
* Effect: creation of border in Irish Sea
* Conflict managed through ‘grace periods’ and non-
enforcement of fines
* Windsor Framework (2023)
Red v green lanes on goods
‘Stormont Brake’
* January 2024: agreement to restore NI power-
sharing
* But Protocol remains contested
what is the context of the Scotland Referendum deadlock
-SNP Government seeks referendum on Scottish
independence
* Follows explicit manifesto commitment in 2021
Scottish Parliament elections
* UKGov refusing to authorise referendum (should Scotland have power to hold it?)
* Absence of statutory provision (e.g. NIA 1998,
s.1 & Sch 1)
* Compare 2012 Edinburgh Agreement
what was the Scotland Referendum Deadlock
UKSC: Scottish Parliament does not have
power to hold referendum
Scottish Independence Referendum Bill
Reference [2022] UKSC 31
* An involuntary union?
* SNP support has fallen, but support for independence consistent
* Who should have the final say re an independence referendum? Why?
Wales: The jagged edge of Justice
-welsh criminals often sent to English prisons and cannot benefit from devolutionary policies in Waled
-Commission on Justice in Wales (Thomas Commission) 2017-19
* Justice arrangements ‘unduly complex’
* ‘Major reform is needed to the justice system
and to the current scheme of devolution’
* Recommended full devolution of justice and
policing
* Not accepted by UKGov
Future reform
Brown Report (2022)
* ‘Assembly of the Nations and Regions’ to replace HoLords
Power to reject legislation affecting constitutional statutes
Subject to UKSC determination
-Reform Sewel Convention
Make it ‘legally binding’/ justiciable
Consent required ‘not normally’ but ‘in all
circumstances’
what are some issues with future reform
A form of recentralisation?
* Ambiguity re ‘constitutional’ legislation
* More power to the Supreme Court?
* Implications for other scrutiny functions
* Lack of detail on elections
* Cautious Labour Party
Future reform
