LECTURES 21 – 23: Devolution
The UK is classified as a unitary State, it is not a federal State. The process of devolution has dramatically
change but without changing the UK into a federal State.
=> has increase the autonomy to the regional institutions
Moreover, the UK has never been a unitary State the same way as France: there are legal differences.
I. THE ROAD TO DEVOLUTION
The modern idea of Devolution emerged in the 70s but increased in the 90s. The road to devolution is not
the same for Scotland/Wales and Northern Ireland.
A. Scotland and Wales
1973: Kilbrandon report: Agreement on the need for devolution to restore public confidence in
Government. The report presents different forms of devolution:
Ø Administrative devolution: the deconcentration of functions within government hierarchy
Ø Executive devolution: transfer of powers of subordinate policies to the devolved institutions
but the government keeps the hands of the central policies.
Ø Legislative devolution: this entails the transfer of powers, to determine policies but also tu
enact legislation.
The commission agreed that devolution was a need. However, they disagreed on the form and scope of
devolution. So, the government proposed these schemes:
Ø Scotland: “Legislative” devolution
Ø Wales “Executive” devolution
Implementation of the schemes dependent on approval by 40% of the electorate in a referendum: however,
the threshold failed to be reached.
=> pb: a lot of people wanted devolution.
But the Scottish people failed more and more abend by the central government: the will of devolution
became stronger in the 90s.
1989: Scottish constitutional convention on devolution had been created. They produced devolution
plans in 1995.
Labour Party wins the 1997 elections and took the proposals of the constitution convention on devolution
that had proposed devolution schemes. They add plans for Wales because the plans of 1995 did not
contained scheme for Wales devolution.
=> these proposals were submitted to referendum
Ø Scotland: 60.4% turnout + 74.3% in favour of creation of Scottish Parliament
Ø Wales: 50% turnout + 50.3% in favour of the creation of a Welsh Assembly
= creation of the Scotland Act 1998 and Government of Wales Act 1998
B. For Northern Ireland
Devolution in Northern Ireland
Ø 1922: Irish Free State separated from the UK
Ø 1920-1972: Home rule in Northern Ireland (Government of Ireland Act 1920)
Ø 1972: Direct rule restored following violent troubles
Devolution in Northern Ireland is part of the peace process (Belfast or “Good Friday” Agreement, 10
April 1998)
Referendums in 1998 in Northern Ireland (71.1% in favour) and in the Republic of Ireland (94.4% in favour)
= Northern Ireland Act 1998
Devolution is asymmetrical: it is not the same for Scotland, Wales, and NI. But Devolution is also an
ongoing process.
II. THE OPERATION OF DEVOLUTION
A. Scotland
Scotland Act 1998 has been amended by the Scotland Act 2012 and the Scotland Act 2016.
Ø The purpose of the Scotland Act of 2012 was to implement the recommendations of the Calman
Commission.
Ø The Scotland Act of 2016 introduced new powers in favor of the Scottish Parliament after
introducing the Smith Commission in response of the referendum of Scottish independence.
How did we get to the Scotland Act of 2016?
SNP won a landslide victory at the 2011 elections: they wanted a referendum on Scotland’s independence
But: important constitutional issues related to the organisation of a “legal” referendum
HL committee on Constitution, report, February 2012: “It is a fundamental principle of the constitution that,
irrespective of any party’s political mandate to form a Government, all governments must act in accordance with
and subject to the rule of law. That the Scottish National Party won an overall majority of seats in the Scottish
Parliament in 2011 gives it a considerable political mandate to pursue its agenda of advocating independence for
Scotland, but as the Scottish Government it must do so lawfully”.
=> the Scottish Parliament is subject to the Rule of Law and can only make law under the limitations
of the Act of 1998.
=> and the matter of referendum is reserved to the UK Parliament and is not devolved to the Scottish
Parliament.
=> neither the Scottish Government nor the SPt has the legislative competence to hold a referendum
à UK Government’s position
=> UK Government recognized the SNP democratic and political mandate. Many options were available
to organize a referendum.
Ø S. 30 order in council conferring on SPt legal power to pass an Act providing for a referendum
Ø UK Act of Parliament providing for a referendum
Ø Amendment of the then Scotland bill
= the option chosen by the UK Government was the S.30
à Scottish Government’s position
=> A referendum question asking whether the powers of the SPt “should be extended so as to enable
independence to be achieved” could be lawfully authorised by an ASP
à HL committee report
Ø Even with this wording, the referendum still relates to a reserved matter
Ø Supports section 30 order to be made to confer clear competence on the SPt to legislate for a
referendum on Scottish independence
An agreement was found by both Government: Edinburgh agreement (15/10/2012). The governments
are agreed that the referendum should:
Ø Have a clear legal base
Ø Be legislated for by the Scottish Parliament.
Ø Be conducted so as to command the confidence of parliaments, governments and people.
Ø Deliver a fair test and a decisive expression of the views of people in Scotland and a result that
everyone will respect.
S. 5A. “(1) Paragraph 1 does not reserve a referendum on the independence of Scotland from the rest of the
United Kingdom if the following requirements are met.
(2) The date of the poll at the referendum must not be the date of the poll at any other referendum held under provision
made by the Parliament.
(3) The date of the poll at the referendum must be no later than 31st December 2014.
(4) There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice
between only two responses.”
= with this modification of the 1998 Act, the Scottish Parliament was able to pass the Scottish
Independence Referendum Act 2013 in order to organize a referendum.
The campaign was interesting to watch = growing support for ‘yes vote’ led the Government to promise
more devolved powers for Scotland if they decided to stay.
Ø Referendum result: 55.3% in favour of the “no” to independence
Ø Necessary for the UK Government to deliver promises made of more powers to Scotland.
After the Referendum, the Smith Commission was set up to work on the matter.
It ended with the Scotland Act 2016
Ø Scottish Parliament and government were mentioned as permanent institutions
Ø Codification of Sewel convention (but no effect on political nature of the convention: see Miller).
Ø New powers devolved: abortion law, equal opportunities, gaming machines…
The referendum was supposed to be one-shot. But new tensions arose from Brexit and the SNP calls for a
new referendum.
1. The Scottish Parliament
à Composition: Scotland Act 1998 (as amended by subsequent statutes). 129 Members of the Scottish
Parliament
Ø 73 elected from single-member constituencies by the “First past the post” system
Ø 56 on the basis of proportional representation (8 regions returning 7 members each)
à Powers: The SPt has many legislative powers in various matters with the exception of subject matters
list in the Scotland Act.
Ø Schedule 4 contains enactments protected from modification: HRA 1998, ECA 1972, most
provisions of the Scotland Act, EU (withdrawal) Act 2018, UK Internal Market Act 2020…
Ø Schedule 5 lists the reserved matters: the Constitution including the Union, international relations,
defense, immigration and nationality, civil service, exploitation of oil and gas…
Subject such as Scottish private law, the judiciary, some matters in health policies, social policies … are
devolved.
Schedule. 4 and 5 can be amended by order in council (s.30)
Limitated powers: The Scotland Act does not affect Westminster’s power to legislate for Scotland
because the UK Parliament is supreme.
But: Sewel Convention codified in the Scotland Act: “But it is recognized that the Parliament of the United
Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”
=> it’s a Sewel motion: is regularly used but with BREXIT and motions were denied by the SP but the UK
Parliament legislated anyway.
= codification does not change the political nature of the Sewel Convention: see UKSC Miller. So, it
means that Westminster can legislate for Scotland without the approval of the SP.
àActs of the Scottish Parliament: A bill of the SP become an ASP when it received Royal Assent.
An ASP is not valid if it is outside the legislative competence of the SPt. An ASP is outside the legislative
competence of the SPt if:
Ø Parliament has legislated extraterritorially
Ø It relates to reserved matters
Ø It is in breach of the restrictions in schedule 4
Ø It is contrary to Convention rights or in breach of the restriction in section 30A(1).
Ø It would remove the Lord Advocate from his position as head of the systems of criminal
prosecution and investigation of deaths in Scotland
= an ASP is not the product of a sovereign legislator and can therefore be review by courts in order to
check if the Scottish Parliament was competent. There are however some rules because the act has
already been implemented.
Different institutions have the power to refer the bill to the Supreme Court if they think that the bill is
outside the competence of the Scottish Parliament.
Ø The Lord Advocate
Ø The advocate general for Scotland: provided legal advice to the UK Government in relation to
Scotland
Ø The Attorney general: legal adviser of the UK Government
= if the Court consider that the bill is not in the competence of the Scottish Parliament, Parliament can
decide to amend the bill, change the bill or reject the bill.
à It is possible for an ASP to be challenged before court. Two main grounds:
Ø Mostly challenged on Human Rights grounds
Ex: Adams v. Scottish Ministers (2003): in this case, the applicant tried to challenge the wild mammals (Scotland)
Act 2002 because according to him, it breaches fundamental rights. The challenge failed; the court considered
that there was no problem of incompatibility
Ø Challenge on the basis that ASP is related to a reserved matter
Ex: Imperial Tobacco Ltd (2012): Tobacco and Primary Medical services (Scotland) Act 2010 was designed to
prohibits the display of tobacco products at point of sale and the use of vending machines
Question: is this legislation about consumer protection (reserved) or public health (devolved)?
=> the challenge failed. The ultimate purpose of the legislative provisions is to reduce the risk of damage
to health caused by the consumption of tobacco products
=> the ASP is within the legislative competence of the Scottish Parliament.
ASPs are amenable to judiciary review because Scottish Parliament is not a sovereign body but in Axa
General Insurance v Lord Advocate (2011), the Supreme Court stressed that ASPs are not to be treated
as mere subordinate legislation because they are the product of a democratically elected body.
Lord Hope: “I would hold, …that ASPs are not subject to judicial review at common law on the grounds of
irrationality, unreasonableness or arbitrariness.... it would also be quite wrong for the judges to substitute their
views on these issues for the considered judgment of a democratically elected legislature unless authorised to
do so, as in the case of the Convention rights, by the constitutional framework laid down by the United Kingdom
Parliament”
Despite the importance of the Scottish Parliament in the UK constitutional settlement, the UK Parliament
remains supreme “notwithstanding the conferral of legislative authority on the Scottish Parliament, the UK
Parliament remains sovereign, and its legislative power in relation to Scotland is undiminished […]in contrast to
a federal model, a devolved system preserves the powers of the central legislature of the state in relation to all matters,
whether devolved or reserved”
2. The Scottish Government
=> Composed of the First Minister (Nicola Sturgeon, SNP head), ministers and law officers.
Ø Ministers are appointed from among the MSPs
Ø Scottish Government is accountable to the Scottish Parliament. They must resign if confidence of
the Scottish Parliament is lost
Ø Scottish Government exercises powers transferred from Crown ministers in devolved areas
Ø Scottish ministers must act in compliance with retained EU law and Convention rights
B. Wales
A “catch-up” devolution (Brigid Hadfield): the devolution started on a less ambitious basis but evolved
with several amendments such as the Wales Act 2006
1. A catch-up devolution
a) FIRST STEP
Government of Wales Act 1998. Initially: executive devolution.
Ø Delegated powers exercised by UK Ministers were devolved to National Assembly (Senedd)
- NA for Wales: 60 members (same election system than Scotland)
- No clear distinction between NA and Executive
Ø At the beginning, no general power to make laws, only a power limited to delegated legislation
by transfer from the Secretary of State for Wales in devolved fields listed in the 1998 Act.
b) SECOND STEP
Government of Wales Act 2006. The amendments start a shift towards legislative devolution, achieved
with 2011 referendum = devolution of legislative powers on a piece-meal basis.
Ø 1st stage: conferral of wider subordinate legislation powers
Ø 2nd stage: Part 3 (now repealed): UK Parliament may confer enhanced legislative powers on the
NA in specified subject matters falling within devolved fields by Legislative competence orders.
- The norms passed with the 2nd stage are known as Assembly measures: they enable the
assembly to pass its own legislation measures
- AM and decisions of ministers had to be compliant with EU law and Convention rights
- Review by SC of legality of proposed measure at the initiative of the Counsel General or the
Attorney General
Ø 3rd stage: Part 4: conferral of Primary legislative powers to the NA to pass acts (not measures
anymore) within devolved fields
- But these powers cannot come into force unless they are approved by a referendum in Wales.
- Referendum held on 2011 (35.4% turnout but 63.5% in favour)
- Power to pass Assembly Measures replaced with power to pass Acts in fields listed in
Schedule 7
=> S. 107:(1) The Assembly may make laws, to be known as Acts of the National Assembly for Wales
…(2) Proposed Acts of the Assembly are to be known as Bills; and a Bill becomes an Act of the Assembly
when it has been passed by the Assembly and has received Royal Assent.
b) THIRD STEP
Wales Act 2014 & Wales Act 2017. Devolution continues in Wales following a report:
Ø Report on Part I published in 2012 on financial accountability
Ø Report on Part II on the powers of the National Assembly published in 2014
=> Wales Act 2014 implements almost all recommendations of the 1st report
=> Wales Act 2017 is concerned with the second report
2. The Saint David process
Saint David process: process that started with the promises made by David Cameron to give more
powers to Scotland if it stayed in the UK, which would also have an effect on Wales. Series of discussion
made by parties and governments to establish series of proposals to continue the devolution process.
=> Shift towards a reserved powers model of devolution: everything which is not reserved is devolved.
=> system closer to Scotland
But the proposals were criticized by Welsh ministers that consider the Welsh devolution is not as strong
as the Scottish devolution. Hence, the bill was still presented to Parliament and the Wales Act 2014 was
adopted.
3. The institutions
The welsh institutions are presented as being permanent features of the UK Constitution = shows the
importance of the devolution in Wales, like in Scotland.
The Assembly is allowed to make laws in certain areas. But it’s a limited competence = the Welsh
Parliament is not supreme!
But it is recognized that the Parliament of the United Kingdom will not normally legislate with regard to
devolved matters without the consent of the Senedd.
à S.108 before: An Act of the Assembly was not law if outside the legislative competence of the Assembly.
To be within the legislative competence, an Act:
Ø Must be limited to Wales
Ø Must relate to devolved matters and not breach restrictions listed in the Act
Ø Must be EU law and Convention Rights compliant
à New S. 108A: now reads as follows: “an Act of the Senedd is not law so far as any provision of the Act is
outside the Senedd's legislative competence.
A provision is outside that competence so far as any of the following paragraphs apply
Ø It extends otherwise than only to England and Wales.
Ø It applies otherwise than in relation to Wales or confers, imposes, modifies, or removes (or gives power
to confer, impose, modify or remove) functions exercisable otherwise than in relation to Wales.
Ø It relates to reserved matters
Ø It breaches any of the restrictions in Part 1 of Schedule 7B, having regard to any exception in Part 2
of that Schedule from those restrictions.
Ø It is incompatible with the Convention rights or in breach of the restriction in section 109A(1).”
This is not similar as Scotland: the rest of the section 108A continues and tries to define in a complex
manner the role of the Senedd
=> things are much more complexed in Whales than in Scotland.
=> they are however things that are like the Scottish situation. But there is also an adaptation when it
comes to Whales and this is related to the second part of the S180A, which made more complexed to
understand what the competence of the Senedd is.
=> certain actors consider that the Act failed to provide a good devolution system.
à The person in charge of the bill must make a statement to explain why, according to him, the bill is
within the legislative competence of the Senedd
à Scrutiny of bills by the SC is possible.
C. Northern Ireland
Devolution in NI is connected to the peace process = it is link to the situation of NI and the need to
preserve peace.
Ex: with Brexit, troubles has erupted again: the political situation is very sensitive.
=> the government should be very careful
Good Friday Agreement (1998): multiparty agreement to reach peace.
The GFA provided:
Ø An Assembly
Ø A British-Irish Council
Ø A British-Irish Conference
The Assembly was elected in 1998
S.1: “NI is to remain part of the UK until the electorate decides otherwise in a referendum”
=> very important significance on a political point of view but debates on a legal point of view
1. Legislative competences
Northern Ireland Assembly: 90 members since Stormont agreement (used to be 108 members before).
à Electoral system: Single transferable vote = proportional representation. STV allows voters to indicate
an order of preference for election and the vote can be transfer to the next choice in the list when the prior
choice is eliminated.
=> 5 years term
=> sometimes, due to the political context, devolution can be suspended (for instance, between 2002 and
2007, the Assembly was suspended).
=> Election of an Assembly chair, a First Minister, a Deputy First Minister
à Powers in the Assembly: Act organises a complex power-sharing scheme
=> key decisions taken with cross-community support = need of the consent of the unionist and the
nationalist party for major decisions.
à Competences:
Ø There are matters which are not within the legislative competence of the Assembly and they
can’t be transfer to the Assembly, other if the Parliament amends the Northern Ireland Act
Ex: security
Ø There are matters which are not within the competence of the Assembly, but which may be
transferred by order in council (= resolution of the Assembly passed with cross community
support + resolution approved by each House of the UK Parliament)
Ø There are transferred matters: matters that are neither excepted nor reserved: Agriculture,
education, art …
The Assembly can pass laws on transferred matters and some reserved matters that can be devolved
=> the powers of the Assembly are constraint: if the Act is passed outside the competence of the
Assembly, it is not law
Ø All the rules for Scotland apply here too = must legislate only on devolved matters, not outside
the territory, must be compatible with Conventions …
Ø Specific rules of Devolution in NI: the Assembly cannot legislate in a way that discriminate
certain persons only for their religion or political belief.
Westminster parliament remains supreme: it can legislate in devolved matters but as a matter of
convention, he does so while having the consent of devolved institutions.
2. Executive
The executive power is exercised on behalf of the Assembly by the First Minister, the Deputy first Minister
and other ministers
Ø First Minister and Deputy First Minister are nominated by the Assembly so as to represent
respectively the largest unionist party and second largest nationalist party.
Ø Other ministers are appointed according to a formula dividing ministries between the main
parties on the basis of voting at the previous election.
Ø Ministers must take the pledge of office which includes a “commitment to non-violence and
exclusively peaceful and democratic means” and undertakings “to serve all the people of Northern Ireland
equally, and… to promote equality and prevent discrimination”
In NI the process of devolution is a process which has been calm = has faced difficulties.
The political situation in NI is still complicated, which has an impact on devolution.
III. ENGLAND AND DEVOLUTION
A. The “West Lothian” Question
Debate about where the devolution process leaves England as Nation
The debate is named after Tarm Dalyell, MP for Wesy Lothian, who raised this issue
“For how long English constituencies and English Honourable Members will tolerate…at least 119 Honourable
Members from Scotland, Wales and Northern Ireland exercising an important, and probably often decisive, effect on
English politics while they themselves have no say in the same matters in Scotland, Wales and Northern Ireland?”
=> he thought that with the devolution, MPs in Westminster will lose powers
=> stressed an imbalance created by devolution: Scottish MPs will have the right to vote on matters about
UK (so England included) but Westminster MPs won’t have the right to vote on matters devolved to
Scotland.
= there is no Parliament only for England.
Solution: S.66 Scotland Act 1998 = when an Act concerning England is passed thanks to Scottish MPs,
a second vote can be organised
=> but the 1998 Act was repealed: has never been applied.
The creation of a distinct Parliament only for England could be an option. However, it would change
the nature of UK, which is not what is supported in the UK.
=> fear that it would reinforce division in the Union
Following the successful implementation of devolution, the question resurfaced
Ø The West Lothian Question has been included in electoral conservative manifesto
Ø Coalition government commitment to set up a commission on the issue: McKay Commission
“To consider how the House of Commons might deal with legislation which affects only part of the United Kingdom,
following the devolution of certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and
the National Assembly for Wales”
B. McKay Commission
The Commission reported in March 2013 :
Ø Commission rejected the idea that only English MPs should be allowed to vote on ‘English’ Law
Ø Commission recommended that views from England should be known on UK bills with a
“separate and distinct effect” on England.
Ø But no power of veto given to English MPs (no “double-lock”)
Ø Proposal of “double-count” of MPs
David Cameron needed to reassess this issue and limit the influence of Scottish MPs on English Matters.
A commitment to a “English votes on English Law” procedure (EVEL) has been included in the
Conservative Party manifesto.
C. English votes for English Law (EVEL)
When a Bill is introduced in the House of Commons, the Speaker certifies if the bill has to follow the
normal procedure or the EVEL procedure.
Ø England-only matters analyzed only by English MPs at committee stage
Ø For bills containing English or English and Whales provisions: a new stage was introduced
between report and third reading:
- Grand committee (English + Welsh MPs) to vote on these provisions (possible veto)
- If amendments are made on English or English + Welsh clauses, double majority vote is
needed
= very complex procedure.
The Labor party was against the EVEL procedure. It was presented as experimental. But, after being
suspended due to Covid, the procedure was withdrawn on the 13 of July 2021.
J. Ress-Mogg, Leader of the HC: “The West Lothian question has not had a very satisfactory answer since it was
posed by Tam Dalyell, who was a most distinguished Member of this House, but if there were an answer, EVEL
would not be it.”
