Federalism:
A federal state divides policy competencies between different levels of government. [1] These levels are central (federal) and sub-central (state / regional).
EG: Germany, USA, Australia etc.
In a federation, each level of government is autonomous within its own set powers, which are usually specified in the constitution. This can be policed by a constitutional court.
Devolution:
A unitary state has one national parliament and one national government who hold the sovereign authority to legislate and govern.
EG: Israel, Ireland, New Zealand etc.
In a devolved state, the powers of the central government are delegated without the national parliament or government relinquishing their sovereignty. [2] National government and Parliament still retain the unilateral power to transfer powers back to themselves and still have the power to legislate on policy areas that have been devolved. This differs from a federal state.
Reasons for Devolution:
The scale of governance should reflect the scale of the matters that need to be addressed. Some things are better handled regionally than at a national level, such as urban planning.
Devolution reflects perceived cultural variation and heterogenous preferences of citizens.
Often a pragmatic part of state-building.
Devolution in the UK:
Devolution in the UK primarily relates to the creation of subordinate legislatures in Scotland, Wales and Northern Ireland, but it can also relate to the work of mayors and local authorities.
Some argue that devolution has ‘transformed Britain from a unitary to a quasi-federal state’. [3] The idea of Britain as a single nation has changed to be seen as a multinational state which unites people of different nations. This is reflected by the fact that fewer people now regard themselves as British. [4]
Creating the Unitary State:
While many informal agreements existed between England and the other constituent parts of the UK, these were not legally entrenched for some time.
England and Wales:
The Law of Wales Act 1535 was enacted to treat England and Wales as a single legal entity after Wales became a principality of the English state.
Wales adopted the English legal system but remains constitutionally distinct otherwise.
Great Britain:
The Treaty of Union and the Acts of Union 1706-7 were passed by both the Scottish and English parliaments. They created a single Great British Parliament, Crown and government. It is guaranteed that the Scottish legal system would be preserved.
It should be noted that this was merely a formal alliance due to England and Scotland sharing a monarch since James I and VI.
United Kingdom:
The Act of Union 1801 created a formal political union between Great Britain and Ireland. Ireland had ties with the English monarchy since 1155.
After the division of Ireland and the creation of the Irish Free State in the 1920’s, Ireland became a fully independent state, while Northern Ireland remained within the UK. After the troubles, in 1972, Northern Ireland was subject to ‘direct rule’ (UK Parliament made all laws for Northern Ireland).
Dismantling the Unitary State:
Growth of national sentiment in Scotland and Wales during the late 1960’s spurred devolution along. Administrative devolution also begun with the creation of the Scottish Office and the Welsh Office to recognise the distinct territorial areas within the UK.
‘The central aim of devolution was to avoid the break-up of the UK by containing the centrifugal forces of nationalism in Scotland and Wales, and, in Northern Ireland, by providing a guaranteed role in government for the minority, nationalist, community’. [5]
After a series of referendums in 1978, a large majority voted against devolution in Wales, while a narrow majority voted for devolution in Scotland (but did not meet the threshold requirement). In the late 1990’s, Labour promised devolution should the people want it in a referendum. [6]
In reality, devolution imposes severe limitations upon the sovereignty of Parliament. While theoretically the UK Parliament could revoke devolution legislation or legislate contrary to it, this would not be accepted by the devolved nations.
‘It is then in constitutional theory alone that full legislative power remains with London; and it is only in constitutional theory that the unitary state is preserved. In practice, power will be transferred, and it cannot, except under pathological circumstances, be recovered.’ [7]
Scottish Devolution:
A majority vote for Scottish devolution was won in 1999. The devolution process began shortly after the referendum results.
Scotland Act 1998:
The Scotland Act 1998 established the Scottish Parliament, elected by proportional representation, and Scottish Government.
The Act conferred relatively generous powers to the devolved powers. The ‘reserved powers’ model means that the devolved powers have jurisdiction over all matters except those reserved for central UK governance. [8]
If the Scottish devolved powers overreach their legislative competence, this can be challenged in the courts. [9]
Powers can be changed and adjusted by an Order in Council, [10] rather than an Act of Parliament.
The UK Parliament retains the rights to make laws for Scotland. [11] This emphasises parliamentary sovereignty. The Sewel Convention creates an expectation that the UK Parliament will not legislate on devolved matters without the prior consent of the Scottish Parliament, though this is not legally enforceable. [12]
Scotland Act 2012:
The Act was created in response to the Calman Commission, which identified flaws in the devolved fiscal framework and how funds are distributed among devolved nations.
It gave the devolved powers increased tax-raising powers and powers over the use of Stamp Duty and Landfill Taxes.
The 2012 Act also enabled the Scottish Government to borrow for finance capital expenditure, with UK Treasury approval.
Scottish Independence Referendum 2014:
A referendum was held in 2014 to determine whether Scotland should be a completely independent nation. The majority voted in favour of remaining within the UK.
Scotland Act 2016:
After the Scottish Independence referendum in 2014, unionist party leaders vowed to deliver new powers to the Scottish developed powers in the event of a ‘no’ vote.
The latest Act gave the devolved powers even more tax powers over income tax, VAT and passenger duty. They were also given substantive powers over welfare, elections and abortion.
Furthermore, it proposes to guarantee the permeance of the Scottish Parliament and Government. It also proposes to place the Sewel Convention on a statutory footing to give ‘symbolic reassurance’, [13] however this does ‘not create a legal obligation’ that the UK Parliament must follow. [14]
In Axa v Lord Advocate, the UK Supreme Court held that even though the Scottish Parliament derived its authority from an Act of Parliament, it is not to be treated in the same way as delegated legislation. Therefore, it is not subject to judicial review on grounds of irrationality, unreasonableness or arbitrariness. Judicial review may only be exceptionally used to strike down Acts of the Scottish Parliament if they breach the rule of law.
In Imperial Tobacco v Lord Advocate, the UK Supreme Court decided that the Scotland Act(s) should be treated and interpreted as any other statute should be.
Welsh Devolution:
After the majority vote for Scottish devolution was won in 1999, the devolution process in Wales began shortly after.
Government of Wales Act 1998:
The Acts main goal was to establish the National Assembly of Wales / Welsh Parliament (‘Senedd Cymru’) and the Welsh Government.
It also gave devolved powers to allow the Welsh Parliament powers to make laws on specific subjects. These were initially called ‘Assembly Measures’ but are now known as ‘Acts of the Assembly’.
Government of Wales Act 2006:
The 2006 Act increased the legislative powers to make or modify legislative provisions. This is confined to designated policy fields.
Referendum:
In 2011, a fully legislative phase was approved by a majority at referendum. This automatically implemented Part IV of the 2006 Act.
The Asbestos Diseases (Wales) Bill proposed that there should be a quasi-tortious liability on insurance companies and compensators for the cost of NHS services to be provided to victims of asbestos related diseases.
The UK Supreme Court ruled that the Bill was outside of the Welsh Parliament’s legislative competence and was incompatible with ECHR.
In Re Agricultural Sector, the Bill proposed a regime that set minimum terms and conditions of employment of agricultural workers (minimum wage, sickness and holiday entitlement). Agriculture is a devolved matter, while employment is not.
The UK Supreme Court ruled that providing that a Bill fairly and realistically satisfies the 2006 Act by not being in an exception, it did not matter whether a Bill might also be classified as addressing issues that are not devolved.
Government of Wales Act 2017:
In 2017, Wales adopted the ‘reserved powers’ model, replacing the conferred powers model and granting more powers to the Welsh Parliament.
Like the Scotland Act 2016, the 2017 Act proposes to guarantee the permeance of the Welsh Parliament and Government.
There is a statutory footing for the convention that the UK will not legislate on devolved powers without prior consent, however is ‘not create a legal obligation’ that the UK Parliament must follow. [15]
Northern Irish Devolution:
Nationalists (generally Catholics) preferred to see a united Ireland independent of the UK, while Unionists (generally Protestant / Church of England and Ireland) preferred continued membership in the UK. Unionists were the majority, but nationalists formed a substantial minority.
Good Friday Agreement:
Devolution was formed as part of extended peace processes. The Belfast (‘Good Friday’) Agreement sets referendums in both Ireland and Northern Ireland for devolved legislature and amendment of the Irish Constitution.
Northern Ireland Act 1998:
s1 – N Ireland to remain part of the UK, unless a majority of the people vote to leave in a poll / referendum.
s2 – Should N Ireland vote to leave the UK, N Ireland will cease to be part of the UK and will form a united Ireland with the Republic of Ireland.
The key focus was on power sharing between opposing parties.
Created the Northern Irish Assembly:
Members of the Assembly are proportionally elected and can either be nationalist, unionist or ‘other’.
The most important decisions require substantial agreement between the nationalist and unionist groups.
Created the Northern Irish Executive:
Selected from the Assembly, ministries are allocated based on the proportion of seats that were won by each group.
The executive is lead by a nominee of each group as First Minister and Deputy First Minister.
Powers Conferred:
s4 - Assembly has full legislative powers on certain issues (Transferred Powers [16]) and can legislate on other issues with the consent of the Secretary of State (Reserved Powers [17]). Other powers are retained by the UK Parliament (Excepted Powers [18]).
Petitions of Concern:
Where 30+ Members of the Assembly vote in favour of a ‘petition of concern’, the issue requires cross-community support. This essentially forms a community veto.
This power was generally overused, leading to proposals for ‘meaningful reform’ in 2020.
Other Institutional Arrangements:
The North / South Ministerial Council is a cross-border institution that develops consultation, cooperation and action between N Ireland and the Republic of Ireland.
The British-Irish Intergovernmental Conference is an east-west forum between the UK and the Republic Governments.
In Robinson, Robinson (Deputy Leader) challenged the re-election of Trimble (First Minister) because he had not occurred within the 6-week time limit set out in NIA 1998.
The UK House of Lords notes that the Act was passed to implement the Belfast Agreement as a peace treaty and is ‘in effect a constitution … But the provisions should, consistently with the language used, be interpreted generously and purposively, bearing in mind the values which the constitutional provisions are intended to embody.’ The House of Lords treats NIA 1998 differently from other Acts of devolution due to the context of the troubles in Ireland.
In Buick’s Application, the Permanent Secretary of Department of Infrastructure had authorised a major incinerator and waste treatment centre. This was challenged as the decision was taken only by a civil servant at a time that the government was suspended. The N Irish Court of Appeal ruled that the decision was unlawful because it could only be made by a minister.
Local Authorities:
Powers and duties were conferred by statute to local government and/or the Secretary of State. [19]
England and the ‘English Question’:
England is not a devolved power because it is too large on its own (accounting for over 80% of the UK population). To be able to successfully devolve power within England, the country would probably have to be split up unto several regions. This is not generally wanted or called for.
‘The United Kingdom is an asymmetrical Union. Not only are the four nations very different in size, but devolution in Wales and Northern Ireland is different from devolution in Scotland, and there is no devolution for England’. [20]
‘English Acts of Parliament’:
With the lack of an England-only institution, the UK Parliament is sometimes concerned with UK-wide issues and sometimes England-only matters. This creates an issue whereby MP’s from Scotland, Wales and Northern Ireland are voting on bills that are to apply to England only. This is a representation issue.
In May 2015, the ‘English votes for English laws’ (EVEL) scheme was implemented via a change to the House of Commons Standing Orders. When the Speaker determines a bill to relate to England only, an additional committee stage is added in the House of Commons. This is a ‘Grand Committee’ of MPs from English constituencies.
Resources:
References:
[1] Andrew Scott, ‘Federalism’, in P. Cane and J. Conaghan (eds) The New Oxford Companion to Law (Oxford University Press 2007) 450 [2] Royal Commission on the Constitution 1967–73, vol. 1 (Cm 5460), para. 543 (often called ‘the Kilbrandon report’ after the commission’s chairman) [3] Vernon Bogdanor, New British constitution (Oxford Hart Publishing 2009) 89-98, 112-119 [4] The Sunday Times (24th January 2021) Front Page [5] Vernon Bogdanor, New British constitution (Oxford Hart Publishing 2009) 89-98, 112-119 [6] Labour Party General Election Manifesto, New Labour Because Britain Deserves Better (1997) [7] Vernon Bogdanor, Devolution (Oxford University Press 1979) 217 [8] See Scotland Act 1998 s29, Schedule 4-5 [9] Whaley v Lord Watson of Invergowrie [2000] SC 340 [10] See Scotland Act 1998 s30, 63 [11] Scotland Act 1998 s28(7) [12] R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 [13] See Scotland Act 2016 s2 (amending 1998 Act s28(7)) [14] R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 [15] R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 [16] EG: Education, Transport, Health and Social Services, Justice, Policing etc. [17] EG: Prisons, Financial Services Regulations etc. [18] EG: National Defence, the Constitution, Treaties etc. [19] See Local Government Act 1972, Town and Country Planning Acts, Localism Act 2011 etc. [20] Commission on Scottish Devolution, Serving Scotland Better: Scotland and the United Kingdom in the 21st Century (2009)
Cases Mentioned:
AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46
Imperial Tobacco Ltd v The Lord Advocate (Scotland) [2012] UKSC 61
Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015]
Agricultural Sector (Wales) Bill [2014], Reference by the Attorgey General for England and Wales [2014] UKSC 43
Robinson v Secretary of State for Northern Ireland [2002] UKHL 32
Buick’s Application [2018] NICA 26
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