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Public Law > Intro to Devolution > Flashcards

Intro to Devolution Flashcards

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1
Q

describe UK constitutional law

A

the law which creates, regulates, empowers and controls the institutions and processes of government

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2
Q

describe devolution

A

branch of UK constitutional law concerned with territorial distribution, exercise and control of public power

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3
Q

what are the 4 main regional devolutions and their acts

A

-Scotland + Scotland Act 1998
-Wales + Gov of Wales Act 1998/2006
-Northern Ireland + NI Act 1998
-English regions

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4
Q

what was the UK government like before 1997 New Labour Gov

A

-one government and one parliament in the UK

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5
Q

what is the UK government like today after 1997 New Labour gov

A

-Wales and Scotland also have their own parliament and government
-Northern Ireland have their own assembly and executive

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6
Q

what do Masterman and Murray, 2022 argue about devolution

A

-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’

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7
Q

when did the devolution process begin

A

-1997 with New Labour gov

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8
Q

describe the beginning of the process of devolution (6)

A

-part of a wider set of constitutional reforms
-bilateral
-asymmetrical but convergent
-created through acts of parliament
-endorsed by referendums
-dynamic and evolutionary process

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9
Q

which of the original devolution statutes has a new statute

A

-Government of Wales Act 1998 –> Government of Wales Act 2006

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10
Q

give 5 reasons for devolving power

A

-growing demands for autonomy
-recognition of multiple national identities
-democracy
-preserve the Union
-preserve parliamentary sovereignty

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11
Q

give 4 reasons why devolution of power was needed in NI

A

-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

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12
Q

why was legislative power not devolved further in England (initially) (4)

A

-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)

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13
Q

what is an example of lack of popular support for regional government/ devolution in England

A

-failed North East Assembly referendum 2004

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14
Q

give 6 key features of Scottish devolution

A

-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

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15
Q

give 6 key features of Welsh devolution

A

-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

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16
Q

give 5 key features of NI devolution

A

-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)

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17
Q

give 4 key features of English devolution

A

-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)

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18
Q

give 5 examples of regional (administrative) devolution

A

-London Mayor and Assembly
-Combined Local Authorities/ Metro Mayors
-Construction Act 2009
- Cities and Local Government Devolution Act 2016
-English Devolution Bil

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19
Q

what are the powers granted to devolutions called

A

-legislative competences

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20
Q

what are the two types of powers/ legislative competences

A

-devolved competences (granted to devolved regions)
-reserved competences (reserved for westminister for devolved regions to follow)

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21
Q

how are powers/legislative competences determined

A

according to the rules of the act in question
– Imperial Tobacco v Lord Advocate (2012) UKSC 61

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22
Q

what case gives the legal rule that powers must be determined according to the rules of the Act in question

A

-Imperial Tobacco v Lord Advocate (2012) UKSC 61

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23
Q

what power does the UK Parliament retain despite legislative competences

A

-UK Parliament retains power to legislate on any matter

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24
Q

where in each of the devolution acts says the UK Parliament retains the power to legislate on any matter

A

-Scotland Act 1998 s.28(7)
-NI Act 1998 s.5(6)
-Government of Wales Act 2006 s.107(5)

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25
Q

give 3 examples of devolved powers/ competences

A

-health
-education
-housing

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26
Q

give 3 examples of reserved powers/competences

A

-constitution
-foreign affairs
-defence

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27
Q

what is s.28(1) of the Scotland Act 1998

A

-Parliament may make laws to be known as the Acts of Scottosh Parliament

28
Q

what is s.29 Scotland Act 1998

A

-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

29
Q

what are the equivalent sections in the GOWA 2006 and NIA 1998 to the SA 1998 s.29

A

-GOWA 2006 s.108A
-NIA 1998 s.6

30
Q

essentially, what does s.29 SA 1998, s.108A GOWA 2006 and s.6 NIA 1998 mean

A

-they do not require devolved legislation to change law on reserved matters (??)

31
Q

what is the Sewel Convention (4)

A

-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

32
Q

give the 2 statutory basis for the Sewel Convention in Scotland and Wales

A

-SA 1998 s.28(8)
-GOWA 2006 s.107(6)

33
Q

is the Sewel Convention non justiciable (3)

A

-non justiciable
-purely political, courts cannot act on it
- Miller I (2017) UKSC 5

34
Q

what is the authority for the Sewel Convention being non justiciable

A

-Miller I (2017) UKSC 5

35
Q

what are the 4 methods/ powers for managing disputes

A

-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

36
Q

what are the statutes referring to referral to the UKSC (3)

A

-SA 1998, s.33;
-NIA 1998, s.11;
-GOWA 2006, s.112

37
Q

what are the 3 statutes that refer to UK Gov ‘veto’

A

-SA 1998 s.35;
-NIA 1998 s.14;
-GOWA 2006 s.114

38
Q

Powers: devolved / reserved boundary ?????

A

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’ ????

39
Q

Powers: devolved / reserved boundary ???????

A

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
?????

40
Q

what are the 2 constitutional protections???

A

-1) Sewel Convention
-2) Permanence clauses

41
Q

what is the permanence clause in the SA 1998

A

-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

42
Q

what is the permanence clause in GOWA 2006

A

-GOWA 2006 Pt A1 (as amended by Wales Act 2017)

43
Q

give 6 challenges to devolution

A

-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

44
Q

give 3 examples of territory specific challenges to devolution

A

-Northern Ireland Protocol
-Referendum deadlock in Scotland
-Jagged edge of justice in Wales

45
Q

what problems does the democratic deficit concern (7)

A

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)

46
Q

,,,

A

,,,

47
Q

,,,

A

,,,

48
Q

how does Dicey describe parliamentary sovereignty

A

-UK Parl’s right to ‘make or unmake any law’

49
Q

how do Loughlin and Tierney 2018 describe Parliamentary sovereignty

A

-an ‘article of faith’ among Westminister’s political class

50
Q

who determines UK regulatory standards post Brexit (5)?????????

A

-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

51
Q
A
52
Q
A
53
Q

what did the UK Internal Market Act 2020 do

A

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)

54
Q

what do Morgan and Wyn Jones 2023 argue about the UK Internal Market Act 2020

A
  • Signals ‘death of devolution’
55
Q

between 1999-24 how many times has devolved legislative consent been withheld

A

-28 UK acts of Parliament
-19 consent refusals between 2019-2024
-Institute for Government 2024

56
Q

the devolved / reserved boundary??????

A

-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

57
Q

what is the background of the NI Protocol

A

-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)

58
Q

what is the NI protocol

A

-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

59
Q
A
60
Q
A
61
Q

what is the context of the Scotland Referendum deadlock

A

-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

62
Q

what was the Scotland Referendum Deadlock

A

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?

63
Q

Wales: The jagged edge of Justice

A

-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

64
Q

Future reform

A

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’

65
Q

what are some issues with future reform

A

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

Public Law (4 decks)

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