Devolution - Constitutional Law

Multilayered Government

1. Devolution in Northern Ireland, Scotland, Wales

   1. What is devolution?

      1. An attempt to answer fundamental questions about where government power should reside

      2. In democracies, the answer turns upon arrangements considered legitimate by the people

         1. Hence, when there is a strong sense of shared identity and destiny, high centralized government is acceptable

         2. But when such bonds are weaker, the architecture of the state might be commensurately looser – people may be contented with the state dealing with defence, national security, etc. while demanding regional governments to represent their unique interests and outlooks, sometimes leading to succession

   2. History

      1. In 1535, Welsh constituencies came to be represented in English parliament. UK of Great Britain, formed by joining of E, W & S in 1707 became UK of Great Britain and Ireland in 1800

      2. Since then, though they were all under Westminster, they are not treated identically – some legislation applies only to a particular region

      3. UK’s constitution was not deliberately drafted and designed – rather, it is the product of centuries of gradual change, of pragmatic responses to issues that have arisen

         1. However, the relentless pragmatism, which has a “reactive and piecemeal” quality that overlooks the need for a “coherent vision for the shape and structure of the UK”

   3. Legislative power

      1. Scottish Parliament and NI Assembly have, since inception, possessed general legislative competence – authorized to enact legislation on any issue, subject to certain exceptions such as HRA, EU Law, international relations, and defence

         1. If they exceed legislative authority, courts can intervene

         2. *Henry VIII clause – S Parliament & NI assembly are capable, within their legislative competence, of amending, repealing and replacing AoP insofar as they apply to S & NI, not just retrospective, but also prospective

            1. If an AoP fall partly in and partly out of devolved areas, the devolved legislatures can only amend the parts that concern devolved areas

      2. In contrast, the system originally adopted in Wales was one of administrative or executive, as opposed to legislative devolution

         1. When AoP gave Ministers discretionary power to make certain choices, they could be made by the Welsh Assembly if they affected Wales

         2. Ron Davies – devolution is a “process not an event”, referring to later acts such as S Act 2012/2016, W Act 2014/2017. These are all work in progress as far as scope of powers is concerned

   4. Executive power

      1. Distinction between legislative and executive in states – e.g. Welsh Assembly v Government…

   5. Democracy

      1. Devolution pursues the goal of democracy of enabling people to feel like they have real influence and are genuinely connected to governance, by providing institutions that are more proximate – geographically, politically and culturally – to them

2. Nature and development of the territorial constitution

   1. Distinction between a federal system and devolution

      1. UK’s system is asymmetrical, and as a result, UK Parliament and government’s involvement differs across the country. In the US, all 50 states have the same degree of power

      2. US federal system emerged from a bottom-up approach – individual states banding together deciding that certain matters should be dealt with by a central government. UK – top down, PS is legally sovereign, and confers limited power on devolved states

         1. However, federalism is not a binary question, but a matter of degree

      3. Different degrees of constitutional security – in US, set by the Constitution, which can only be changed by 75% approval by all states. Devolution in UK passed by AoP – open to parliament to amend its own enactments, hence no legal security as a matter of strict law

         1. Although legal security is lacking, there is considerable political security

         2. UK Parliament has recent legislated to give at least the appearance of legal security

3. The territorial constitution – legal or political phenomenon

   1. Disjunction between positions prescribed by legal theory, and real world politics (Sewel convention – constitutional self defence)

   2. In the absence of law, the vacuum in the “vast constitutional space” has been filled by “concordats” (Rawlings), best thought of as instant conventions. They are explicit, but legally non-binding agreements, such as the Memorandum of Understanding setting out terms of how the UK & devolved governments should relate to each other

   3. Legal aspects

      1. Devolution legislation sets out in detail the powers, and their limits, of devolved institutions, with special provision for judicial resolution of “devolution issues”

4. Legislation on devolved matters – the Scotland Acts

   1. What they say

      1. S Act 1998 provided that the conferral of powers on S Parliament “does not affect the power of the Parliament of the UK to make laws for S”

      2. But a provision in S Act 2016 says that “it is recognized that the Parliament of the UK will not normally legislate with regard to devolved matters without the consent of the S Parliament”

   2. Legal & political constitutionalism

      1. The 2016 Act refers to the Sewel convention, but to assume that it turns the convention into a legal restraint on Westminster would be rash

         1. The legislation at most only refers to a part of the convention. A broader understanding has emerged that *the convention also applies to Westminster legislation that adjusts the scope of devolved competence

         2. It’s far from clear that the legislation gives legal effect to any part of the constitution – far from unambiguous

         3. Hence, the better view is that – perhaps paradoxically – the significance of the 2016 Act’s legislative acknowledgement is political rather than legal. By formally recognizing the convention in legislation, it explicitly makes UK parliament a party to a convention

      2. The overall picture is that the 2016 Act leverages the relationship between legal and political constitutionalism in a subtle but important way – the law is used to contribute to...