Week 6- Multi-layered government Flashcards
What was the act of settlement 1707, and what was the effect on Scottish representation??
Both Westminster parliament and Scottish Parliament passed acts to form a union with each other, leading to the creation of the union of Great Britain with a single parliament (Wales was already joined to England)
-Scotland sacrificed its PS in favour of membership of much reduced representation, leading to resentment between unionists and nationalists.
What was the government of Ireland act 1920??
It provided for the division of Ireland into Northern Ireland and Southern Ireland, and made provisions for their own home rule. However the provisions were never carried out in Southern Ireland due to the Irish war of independence.
- They were both to remain part of the United Kingdom of Great Britain and Ireland, and their reunification was made possible in the provisions of the act.
- The Northern Ireland settlement continued until 1972 following ‘the troubles’, leading to the suspension of Northern Irish parliament.
What does MacCormick say about the inability to repeal the acts of settlement 1707 and the differences between the former and new parliaments?
-The act of union 1707 was also not like repealing any other act of parliament, despite arguments that a sovereign parliament should be able to do so. The argument against this was that the act of Union was fundamental law, passed by two parliaments, and therefore in setting out the new legislative, judicial and executive branches, they couldn’t simply use powers under a new parliament to change the laws of a prior parliament which differed by name, membership and territorial jurisdiction
Where does parliaments current legislative power derive from??
-Derives from both the Scottish and English parliaments which passed the acts of union 1707
What does MacCormick say about an acts of parliaments ability to impose legal limits on institutions of whom legislative power has been conferred onto?
Legislative power can be conferred with limits, without allowing anyone else to remove or abrogate the limits to these powers; the act of settlements were passed by distinct English and Scottish Parliaments; not Westminster, and therefore even our sovereign parliament had pre-limited legislative powers conferred onto it without the power to abrogate these limitations (the limitations being the ability to repeal parts of the acts of Settlement)
MacCormick v Lord advocate facts and significance?
Facts- MacCormick challenged the ability of the Queen to decide her own title in Scotland, under prerogative powers. The act of union 1707 said that the Queen did not have this power, and a subsequent act in 1953 was inconsistent with the act of union
Significance- The Royal style and titles act 1953 was inconsistent with article 1 of the treaty.
- The Lord advocate won the case, making the argument that the articles of union had nothing to do with the Queens title and that even if some articles in the Settlement were unalterable, article 1 was not.
- However, he did concede that some terms could not be repealed by parliament where express words made them unalterable.
Why did the repeal of parts of the act of union cause some problems in MacCormick V Lord advocate??
-The treaty of union 1707 was almost fundamental law passed by two prior parliaments and was binding on the new parliament of GB set up thereafter. Implied repeal of such a statute was not as simple as any modern act of parliament, especially with the articles of the treaty of union deriving from English and Scottish parliaments, rather than Westminster.
What arguments does Bell make with regards to the flexibility of our constitution and devolution arrangements??
-Although the UKs governments programme of devolution marked a substantial change from the earlier Westminster-based status quo, it can also be seen within a longstanding tradition in the UK of making constitutional changes organic in response to particular pressures, rather than by sweeping reforms.”
What was the main reason for devolution to Northern Ireland??
-This was part of a peace process, involving political actors and civil society faced by violence regarding Irish union and unity with Britain. It was based around transcending the inability to reconcile between Irish nationalist and British Unionist views of the constitution,
How does devolution to Northern Ireland look in terms of their parliament?
- There exists a cross-party parliament comprised of nationalists and unionists
- Institutions became owned by both unionist and nationalist members.
- The leader of the larger party (unionist or nationalist) holds first minister whilst the second largest party (the other of unionist or nationalist) hold deputy first minister. Their powers are in fact equal and rely on mutual respect between the two parties for the ongoing operation of their parliament
- These different groups have different ideas about what the sovereignty, political values and territory of the Northern-Irish state should be.
How was Scottish devolution legitimised and what constitutional implication did it have?
- Legitimised by a referendum, as they didn’t know what the commons majority would be in passing the act. Arguably the referendum also modified the UK constitution, limiting future parliamentary sovereignty by signalling that a referendum would also be required to dismantle the Scottish Parliament (same with other devolved legislatures)
- The most recent Scotland Act 2017 dictated that Scotland remains a permanent part of the devolution arrangements, and can only leave on account of a referendum; however, the union of UK and Scotland is a reserved matter for WMP, so Scotland are unable to initiate secession even if they hold a referendum.
How might asymmetric devolution be desirable given the differences between Scotland, Northern Ireland and Wales?
In terms of asymmetric devolution, the desire appears to lie, from a legal point of view, in the fact that there were different problems between the different states, that could not be mitigated through symmetric devolution.
- Pre-existing social and political tensions that varied between the states called for different terms of devolution in order to mitigate the problems.
- Furthermore these state-specific issues also had to be contended with pre-existing principles of the UK constitution, notably the sovereignty of parliament and how this could be upheld through labours process of devolution.
What is the basic theory of subsidiarity?
-Decision making should be done at the lowest level possible, closest to those directly affected by the decisions.
What does the European model of subsidiarity say and where is it expressed?
What does It say about the significance of subsidiarity?
- Expressed within art 5 of the EC
- “the community shall take action with the principle of subsidiarity, only and if insofar as the objectives of the proposed action cannot sufficiently be achieved by the member states and can, therefore, by reason of the scale or effects of the proposed action, be better achieved by the community”
- Subsidiarity is a moral principle which is important in allowing states some level of self-determination and autonomy, indicative of different social, political and economical conditions in respective areas which cannot efficiently be catered to via universal decision making.
- The fact subsidiarity is contained within EC treaties suggests it is a favourable principle, by the means of efficiency
What does Barber say with regards to subsidiarity and efficiency??
The power of decision making should trickle down to the lower institution UNLESS centralisation results in more efficient gains.
- “it is not enough that centralisation achieves some efficiency” there must be efficiency gains over and above what could be achieved at state level.
- The provisions indicates that it is not enough just to exercise subsidiarity by smaller states or parties of political actors; it must be be by those affected by the decision making.
Should subsidiarity dictate that everyone affected by a decision should be involved in it??
-Our system of representative democracy provides a satisfactory trade off between dictatorship and pure subsidiarity (borderline direct democracy), as the parliamentary system provides a formal and refined space for deliberation, in which MPs represent their constituency and transform the impractical deliberation 10s of millions of citizens into a formal debate. For everyone to be directly involved in the process would impede on the efficiency that EU subsidiarity seeks to promote.
What fraction of acts apply to England and Wales and what fraction apply to GB?
A third for England and Wales
1/10th for GB
How many WM acts apply solely to Scotland, Wales and Northern Ireland and what does this say about the asymmetry of devolution??
Two acts apply to just Scotland
- 3 to just wales.
- Northern Ireland had 10 bills in 5 years, reflecting the difficulties of devolution, indicative of the difficult cross-party government and pre-existing political tensions in Northern Ireland
How did the content of WM acts for Wales, Scotland and Northern Ireland differ and why?
-WM legislating for Ireland differed to Wales and Scotland in that many acts directed at NI were ‘constitutional’ as they were attempts at trying to get devolution back on track, whilst in Scotland the largest category for WM legislation was criminal bills and in Wales it was health and social care bills.
How is the representation of the devolved territories MPs in WM parliament asymmetric?
NI has seen more bills than Scotland and Wales and yet none went through a procedure which gives special voice to Irish representatives (legislative grand committees). Notable constitutional bills went through the commons on second reading, Irish MPs outnumbered massively by MPs from the other 3 territories.
