The Territorial: Constitutional Devolution

Question 1

Challenging presumptions:

Answer 1

Unitary constitution:
- Fundamental changes to the constitution since 1999.
- Challenges the Unitary nature of the constitution
Constitutional Reform:
- Generally ad-hoc and piecemeal (meaning it doesn’t follow the blueprint of a plan
Geographical distribution of powers:
- UK has highly centralised powers

Question 2

Arguments that can be made around decentralisation?

Answer 2

• More accurate representation, political implications
• Lessens workload to focus on bigger picture things
• Functionality (efficiency)
• An element of political appeasement
• Retain state unity
• Extra tiers of government can lead to lack of accountability
• Overlapping policies in different parts of the state

Question 3

Explain the State of Unions?

Answer 3

• UK Parliament and Parliamentary sovereignty have overarching control in the whole territory
  England:
• Different kingdoms in England unfilled by Athelstan in 10th Century
• 1066 Norman conquest
• Establishment of English Parliament
  Wales:
• Statute of Wales 1284
• Acts of Union 1536 and 1543
• Government of Wales Act 1998
• Government of Wales Act 2006
  Scotland:
• 1603 Unification of the Crowns
• Act of Union 1707
• Scotland Act 1998
  Northern Ireland:
• Act of Union 1800
• Government of Ireland Act 1920
• Northern Ireland Act 1998
• Good Friday Agreement which led to the establishment of a system of devolved government in NI.

Question 4

What is the UK?

Answer 4

• UK Internal Market Policy Paper (July 2020) takes a positive stance on the system of devolution.
  ‘the government’s approach set out here will ensure that devolution continues to work well for all citizens’
• Welsh Government, reforming our union: shared governance in the UK: said ‘PS as traditionally understood no longer provides a sound foundation for this evolving constitution’

Question 5

What is federalism?

Answer 5

• System of voluntary self-rule and shared rule
• Structure and process of governance
• Recognition that each part has its own sovereign control
• ‘an association of states, which has been formed for certain common purposes, but in which the member states retain a large measure of their original independence’
• The federal principles is a way of dividing powers so ‘general and regional governments are each within a sphere, co-ordinate and independent’

Question 6

How does devolution impact Parliamentary Sovereignty?

Answer 6

• PS is protected in Devolution acts
• Devolution is a top-down exercise which has PS at its heart.
• Cannot be classed as a federal constitution because no legal constitutional protection for devolved institutions - parliament can make or unmake any law.
• Political reforms to provide some protection and recognition of devolution arrangements.
  For example:
• Section 1 of Northern Ireland Act 1998
• Said NI will in its entirety remain part of the UK and shall not cease to be so without the consent of a majority of the people of NI in a poll held for the purposes of this section in accordance with Schedule 1.

Question 7

Explain what devolution is?

Answer 7

• ‘Involves the transfer of powers from a superior to an inferior political authority’
• ‘More precisely, devolution may be defined as consisting of three elements: the transfer to a subordinate elected body, on a geographical basis of functions at present exercised by Ministers and Parliament’
  What is meant by ‘powers’?
• Executive powers (gov) is subordinate to legislation and governing powers.
• Legislative (legislature) is primary law-making powers and parliamentary powers.

Question 8

What is the devolution process?

Answer 8

1. Transfers powers from central to regional or local levels
2. Creates a layer of government between the state level and local level
3. Responsibilities for functions that have traditionally been exercised centrally by ministers (executive and parliament)

Question 9

What is decentralisation?

Answer 9

• Bureaucratic decentralisation is decentralised powers but does not establish new institutions.

Question 10

Briefly explain what administrative devolution is?

Answer 10

• Administration of policy in different regions and areas
• Easier to administer some policies in smaller areas
• One central government and legislature continues from Whitehall and Westminster

Question 11

Explain Political decentralisation?

Answer 11

Executive:
- Devolves governmental powers
- Create new government for the region
- powers to create and administer policies
- Powers to create secondary legislation
Legislative:
- Creates a new legislature for the ‘region’
- Primary legislative power
See on notes examples of these for NI, Scotland, and Wales.

Question 12

Explain administrative devolution?

Answer 12

• UK government and UK parliament governs the whole of the UK
• Can accommodate differences between different nations and regions within existing central institutions
• Easier to administer some policies in smaller areas
• The UK Executive established separate departments to deal with certain administrative matters in the home nations
• Scottish Office established in 1885 and Secretary of State for Scotland in 1926.
• Secretary of State for Wales and the Welsh Office established in 1964.

Question 13

What are the weaknesses of administrative devolution which led to more formal devolution in 1999?

Answer 13

• Democratic deficit: responsibility without directly accountability
• Lack of accountability of Secretaries of State for Scotland and Wales
• Needed a more democratic and accountable form of decentralisation by the end of the 20th Century
  Today:
• Secretaries of State for Wales, Scotland and NI still exist.
• Most of their powers transferred to devolved legislatures
  Role is still significant because of:
• Involves handling legislation that affects the devolved territory
• Represents the devolved territories interest in Cabinet and Cabinet Committees
• Responding to parliamentary interest in devolved territorial affairs.
• Transmitting the block grant to the devolved administration
• Supporting collaboration between HM Government and the devolved governments
• Promoting the interests of the territory

Question 14

Explain Executive Devolution:

Answer 14

What are the executive powers?
- Powers of Government to administer laws and create a new policy in devolved fields.
- Powers to create delegated legislation
Four Governments of today:
- Uk Government
- Scotland Act 1998
- Northern Ireland Act 1998
- Government of Wales Act 1998 now the Government of Wales Act 2006
Executive Devolution:
- Creation of new government institutions alongside the UK Government and above local governments.
Devolve governmental powers:
- Administrate policy in devolved areas
- Create new policies in devolved areas
- Exercise delegated legislation in devolved areas
- Create budget to determine how money is collected and spent
- Create a legislative programme for the devolved legislature

Question 15

What is the role of executive powers?

Answer 15

• Each government in the UK is responsible for exercising delegated legislation and preparing policy within its devolved powers
• Different subordinate legislation can be exist for each nation.
  For example: London Mayor
• Directly elected
• Supported by team of deputy mayors
• Mayor is responsible for setting a budget to manage strategic planning, housing, transport, policing and fire services.
  For example: Greater London Assembly
• 25 members
• Scrutinises work of the mayor
• Mayor must consult with the assembly before making large spending decisions
• Investigate issues important to constituents and promotes change from London Major and UK Government.
  For example: Devolution Deals
• Cities and Local Government Devolution Act 2016
• Local authorities agree to join together to establish a combined authority to work together on larger projects.
• UK government devolves powers and budgets over specific projects to elected mayors and regional bodies: transport, health and social care, planning, policing etc.
• UK government retains control rather than give full autonomy to regional mayors.

Question 16

Explain intergovernmental relations?

Answer 16

• Is the arrangement for each government in the UK to talk with each other
• Bilateral is 1 government to another 1 government
• Multilateral - more than one government together
• Politically controlled so highly flexible
• Challenges to operation of memorandum principles with four different poetical parties in power in each part of the UK.
• Criticism over lack of consultation and information sharing related to Brexit and Covid-19.
  For example: Covid-19 injury
• Highlighting the weakness of government co-operation with each other in response
• Boris Johnson attitude towards decision making during Covid-19 undermines intergovernmental relations and parity of the devolved governments
• Arguing more of a federal structure

Question 17

Explain briefly what legislative powers are and state the two models:

Answer 17

Legislative Competence: Areas where devolved parliaments have to create legislation and where they can’t
Two models: Conferred Power Model, and Reserved Powers Model.

Question 18

Explain the Conferred Power Model:

Answer 18

• Can legislate over listed powers only
• Government of Wales Act 2006
  Section 107:
  (1) The Senedd may make laws, to be known as Acts of Send Cymru or Deddfau Send Cymru
  (5) This part does not affect the power of the parliament of the UK will not normally legislate with regard to devolved matters without the consent of the Senedd’

Question 19

Explain the Reserved Powers Model:

Answer 19

• Can legislate over any matter except for what has been reserved for the Westminster Parliament or UK government.
• Scotland Act 1998
• Northern Ireland Act 1998
• Wales since Wales Act 2017 came into force
  Which one is more powerful?
• Reserved power is determined by what is on the list
• Up to the UK parliament to choose the degree of power.

Question 20

Explain the how legislative competence has shifted from conferred to reserved powers model?

Answer 20

• Gradual development of legislative powers in Wales
• Government of Wales Act 2006
• Introduced a conferred powers model of legislative powers under section 108.
• The National Assembly for Wales was reformed as legislature - executive powers passed to newly created Welsh Government
  The national assembly for Wales could only legislate on the list of subjects devolved to them (Conferred Powers Model):
• This list of powers was enhanced in stages
• Part 3 and Schedule 5: the assembly could make primary legislation in specified fields if it was expressly given the power by the UK parliament
• Part 4 and schedule 7: provided the assembly with wider powers in the devolved fields after referendum on full law-making powers
  -Wales Act 2017:
• moved Wales to a reserved powers model (similar to Scotland)
• Allowed the national assembly for Wales to be renamed to Welsh Parliament
• Reserved Power Model: can legislate on anything except for what is reserved to the UK parliament.
• But, criticised as having a long list of reserved matters the national assembly will have reduced rather than more powers.
• Unity of England and Wales jurisdiction means powers are more restricted.
• Unique structure of having two legislatures and governments within one jurisdiction.
• In force since April 2018.

Question 21

When is something outside legislative competence? (Government of Wales Act 2006)

Answer 21

(a) it extends otherwise than to only England and Wales
(b) it applies otherwise than in relation to Wales or confers, imposes, modifies or removes (or gives the power to do so) functions exercisable other than in relation to Wales.
(c) it relates to reserved matters (&A)
(d) it breaches any of the restrictions in Part 1 of 7B, having regard to any exception in Part 2 of that Schedule from those restrictions.
(e) it is incompatible with the conventions rights

Question 22

Explain the reserved powers in Schedule 7A?

Answer 22

General reservations:
- The constitution
- Political Parties
- Foreign Affairs
- Public Service
- Defence
-Legal Jurisdiction of England and Wales
Specific Reservations:
- Financial and economic matters
- Home affairs (immigration)
- Trade and Industry
- Energy
- Transport
-Social security
- Professions
- Employment
- Heat, Safety and Medicines
- Media and Culture and sport
- Justice
- Land and Agricultural Assets
- Miscellaneous

Question 23

Explain the reserved power models function in Scotland?

Answer 23

• Sections 28-29 and Schedule 5 Scotland Act 1998
• Enhanced powers: Scotland Act 2012 (taxation) and Scotland Act 2016 (welfare)
• Widest range of powers
• ‘Most powerful devolved parliament in the world’ David Cameron

Question 24

Explain the reserved power models function in Northern Ireland?

Answer 24

• Section 5-6 Northern Ireland Act 1998
• Adjusted reserved powers model
  Schedule 2 - expected matters:
• The crown and matters related to the crown
• The UK parliament
• Defences and Arms
  Schedule 3 - Reserved Matters:
• 2010 - transferred matters over policing and criminal justice
• Anything else are transferred matters (within legislative competence of the Northern Ireland Assembly)

Question 25

Acts of Devolved parliaments:

Answer 25

- Are acts made by the devolved legislatures primary legislation like the UK parliament? or are they secondary legislation like executive powers? - Important because it determine if the courts can set them aside or not - Primary Legislative Powers: could only be reviewed if outside legislative competence or contravened the rule of law - Secondary Legislative powers: could be reviewed on the basis of irrationality, unreasonableness and arbitrariness (like any local authority or executive body)

Question 26

Explain the case of Axa General Insurance v Lord Advocate [2011] UKSC 46:

Answer 26

- Acts of the devolved legislatures are not subject to judicial review at common law on the grounds of irrationality, unreasonableness or arbitrariness. - Lord Hope [52] 'it would be wrong for the judges to substitute their views as to what is rational or reasonable for the considered judgement of the democratically elected legislature' - Courts can only challenge devolved legislation on ground set out in the devolution acts - If outside competence, contrary to ECHR or retained EU Law or any other legal restriction on each parliament.

Question 27

What are the challenges to Acts of Devolved parliaments?

Answer 27

- UKSC has regularly heard challenges regarding the competence of devolved parliaments - UKSC can hold that bill is outside competence and invalid - Such challenges would not be possible for Acts of the UK parliament because of parliamentary sovereignty - Section 108A court needs to look at the purpose and effect of the bill to see whether it relates to the reserved matter.

Question 28

Reference to the UKSC before Royal Assent:

Answer 28

- Section 112 allows the attorney general or counsel General for Wales to refer a Bill to the UKSC to ask if the Bill, or provision of a Bill would within legislative competence. - Recovery of Medical cost for Asbestos (Wales) Bill: reference by the Counsel General for Wales [2015] UKSC 3 - The Christian Institute and Others v The Lord Advocate [2016] UKSC 51: challenged the Scottish Parliament on compliance with ECHR.

Question 29

Challenges after Royal Assent: Devolution Issue in Ordinary Judicial review

Answer 29

- Schedule 9 Government of Wales Act 2006 - Martin & Miller v HM Advocate [2010] UKSC 10

Question 30

Legislative Competence Test:

Answer 30

- 'Relates to' Test (Section 108A (6) EWA2006) Purpose and effect of provision - Must have more than 'loose or consequential connection' with reserved matter [Martin & Miller] - Purpose: 'derived from a consideration of both the purpose of those introducing it and the objective effect of its terms' - Consideration of whether the purpose of the Bill is within legislative competence. What is the provision really about? - Effect 'effect in all the circumstances' - Not limited to direct legal effect on a reserved matters. Reference by the Lord Advocate of devolution issues under paragraph of Schedule 6 to the Scotland Act 1998 [Scottish Independence Referendum Bill Judgement] [2022] UKSC 31: - 'Even a non-binding advisory referendum on Scottish independence would have imprint political consequences relating to the Union and the United Kingdom Parliament' [81] - 'A lawfully held referendum would be a poetical event with political consequences. It is equally plain that a bill which makes provision for a referendum on independence - on ending the sovereignty of the parliament of United Kingdom over Scotland - has more than a loose or consequential connection with the sovereignty of that parliament' [82]

Question 31

What is the Sewel Convention?

Answer 31

- UK Parliament has the legal authority to legislate on any matter in any part of the UK. Political Restrictions: - Permanency clauses: devolved institutions recognised as permanent parts of the UK constitutional arrangements - Sewel convention codified in statute: not to legislate on devolved matters without consent. - Lord Sewel said 'we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament' [House of Lords, 21 July 1998] - Included in a memorandum of understanding between the UK government and devolved governments.

Question 32

Sewel Convention and Statute:

Answer 32

- Wales Act 2017 placed the Sewel Convention in Statute - Government of Wales Act 2006, section 107: (5) this part does not affect the power of the parliament of the United Kingdom to make laws for Wales (6) But it is recognised that the parliament of the UK will not normally legislate with regard to devolved matters without the consent of the assembly.

Question 33

What are the two possible situations to ask for consent:

Answer 33

- When the UK parliament legislate for Wales in a devolved as [Lord Sewel's definition ) - When a UK parliament bill amends the legislative powers of the Welsh Parliament gives or takes away legislative competence [broader than Lord Sewel's definition]

Question 34

Is putting a convention into state useful?

Answer 34

- Clarity and symbolic respect - But Lord Sewel's wording is more limited than the convention itself - The wording 'not normally is vague and difficult to define legally.

Question 35

Does putting the Sewel convention into statute make it justiciable?

Answer 35

Miller v Secretary of State for Existing the European Union [2017] UKSC 5: - Confirms that the Sewel convention does not have legal effect despite being placed in statute - Not justiciable 'As the advocate General submitted, by such provisions, the UK Parliament is not seeking to convert the Sewel Convention into a rule which can be interpreted, let alone enforced, but the courts; rather it is recognising the convention for what is it is, namely a political convention and is effectively declaring that it is a permanent feature of the relevant devolution settlement. That follows from the nature of the content, and its acknowledged by the words, of the relevant subsection. We would have expected UK Parliament to have used other words if it were resign to convert a convention into a legal rule justifiable by the courts' [paragraph 148]

Question 36

Why consent to the Sewel Convention?

Answer 36

Reasons in favour: - More efficient as there is no need to legislate twice on the same issue - some amendments outside the powers of the Welsh Parliament - Make best use of resources - When urgent legislation needed across the UK (Coronavirus Act 2020) - Balancing respect for Parliamentary sovereignty and devolved powers. - Applying the principle of consent -- Giving the Welsh Parliament an opportunity to consider parliamentary Bills that may affect power of the Welsh Parliament -- Give the Welsh Parliament and the Welsh Government the opportunity to respect amendments to the Bill to avoid a negative impact on devolved powers.

Question 37

Reasons against:

Answer 37

- Allow the UK parliament to legislate on devolved matters defining the devolution settlement -- Risk of the UK parliament being used excessively -- Using the UK parliament even in art where the Welsh parliament could legislate - Not giving sufficient voice to the Welsh Parliament -- The Welsh government gets power through the UK parliament - A constitutional convention only -- The British Government can ignore a lack of consent - No legal force (Miller 2017)

Question 38

Explain the Sewel Convention in Action:

Answer 38

- Institute for Government 'Devolution at 20' - 199902019: 350 Legislation Consent Motions across the UK - Only 10 rejected (at the time of the research) - 7/10 rejections of consent occurred in Wales - 5/10 UK parliament legislates without consent of the Welsh Parliament - EU (Withdrawal Agreement) Act 2020 - UK Internal Market Act 2020 - Does this highlight a vulnerability for Welsh Devolution?

Question 39

Explain the English Question?

Answer 39

West Lothian Question - Why should Scottish MPs be allowed to vote on legislation which only applies in England? McKay Commission: - Recommended a model of English votes for English Law - Law which only applies to England to have a different legislative process so that English MPs could consent to laws without MPs from devolved nations - But all MPs could notes on the final version of the Bill English Votes for English Laws (EVEL): - Creates an English process within the UK parliament - Type of administrative devolution - making a different arrangements for different regions within the central parliament - EVEL procedure abolished in 2021 The English Solution: - An English parliament - a parliament for the whole of England would create a devolved tier of government for England - However, this would be over-sized compared to other devolved tiers - Could challenge the UK parliament as size would be similar Full devolution to English Regions: - would be more symmetrical and coherent across the UK - But no appetite in England for regional assemblies - Rejected in the North East Referendum

Question 40

Conclusion to this topic:

Answer 40

- Asymmetrical devolution in the UK - Constitutional reform has been ad-hoc and piecemeal - No consistent principled approach to devolution within the UK constitution - Different types of models: conferred and reserved power models - Reserved power model more robust and sustainable - UK parliament still legislates regularly on devolved matters too - Implications for parliamentary sovereignty - Legal Parliamentary Sovereignty is retained - But, important poetical restrictions imposed on parliament which could politically bind future parliaments. - What role should popular sovereignty play in the future?