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1. Subsidiary and the Point of Devolution
* The Referendums (Scotland and Wales) Act 1997 authorized referendums in Scotland and Wales to gain the approval of electors to the government's schemes for devolution. 75% in Scotland supported, 50.3% in Wales supported.
* Subsidiarity = an organizing principle stating that a matter ought to be handled by the smallest, lowest or least centralized authority capable of addressing the matter effectively. It is a principle of EU law which says that the Eu may only act where action of individual countries is insufficient.
* Article 5(3) of the Treaty on European Union says: "Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only of and in so far as the objective of the proposed action cannot be sufficiently achieved by Member States, either at a central level or at a regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level."
* Subsidiarity speaks to the empowerment of democratic institutions of which individuals ought to be included in decisions relating to the exercise of public power.
* The article provides a preference for power to be allocated to a smaller unit, qualified by an efficiency test - the power should be shifted downwards unless the centralization of power will result in efficiency gains, but this test is qualified by the phrase 'cannot be sufficiently achieved'. which places an unquantified minimum level on the efficiency gains.
* Under the European principle those who wish to see power centralized have to displace the presumption weighing against them. The European principle tries to ensure that errors will favour the smaller units - where power is misallocated, it will be misallocated to the states or regions rather than to the larger body.
* The principle was included to placate Member States who feared that too much power was shifting from national to European level - this may be historically accurate but is normatively empty- it doesn't provide why protecting states and regions is a good in itself.
* One argument is that is helps to reduce the risk of tyranny by splitting governmental power - this however, is contingent on the virtues of the centre and the regions - weak central government can lead to oppression just as much as liberty, as seen in American federalism where the racists of the southern states gained power.
* A better argument is on the structuring of democracy - although the principle is not one of democracy (it could work equally as well in a non-democratic state), read in the context of the EU's commitment to democratic government it shapes the structures within which democracy operates. There is a presupposition by the European Treaties that democratic government is worthwhile, so the principle of subsidiarity should not be construed in a way which frustrates democracy. Before a power if allocated to an institution it needs to be asked whether the institution is democratic. It is hard to determine the catchment area of those affected by a decision, without making it over- or under-inclusive.
* Subsidiarity has both an allocative and a creative function - it can require that a new body be created. E.g. before the establishment of Scottish Parliament many decisions relating to Scotland were taken by WEstminster. It was over-inclusive. The creation of a new assembly in Scotland better matched institution to power. Subsidiarity believes that the boundaries of democratic units should be made by those who will be affected - the issue is that different political issues will have different constituencies.
* A national group is a collection of individuals bound together by mutual recognition, a belief, whether justified or not, in common kinship. The moral obligations that exist between nationals are different and stronger than those owed to non-nationals. Democracy and social welfare provision require the support of a national group if they are to be stable and effective,
and it is claimed that it is only within a national group that democracy and social justice can flourish because people feel a responsibility towards each other. Liberal nationalists determine the bounds of a democratic unit based on the principle of national self-determination.
* The claim of national self-determination contrasts with the demands of the European principle of subsidiarity. The European account of subsidiarity ties decisions to those affected by them, national self-determination ties political power to a national group, which may or may not map on to those affected by the power. They present rival answers to the same question of where boundaries should be drawn. One concern of devolution was that richer regions would shirk their responsibility for poorer areas. Federal States, Unitary States and Devolved Powers
* Federal States: One constitution governs the power between the centre and the regions. Strong constitutional review is often a feature, as is a 2 chamber legislature representing the people and the regions. Power is allocated by an overarching written constitution - the sole legal source of central and provincial power. Constitution amendable only through a formula that involves both central and provincial authorities. Central and provincial powers have exclusive areas of legislative competence. Co-ordinate powers.
* Unitary States: constitution doesn't divide power in a categorical way, but central government can hand down law making power to regional institutions. No need for constitutional review as all action by the central power is constitutional. UK most closely accords to this.
* UK Devolution: Parliament is sovereign and remains the sole source of devolved authority. Parliament can amend the constitutional arrangements as it likes. Parliament has exclusive legislative competence. Superordinate and subordinate powers.
* There is a spectrum between federal and unitary - Westminster can no longer legislate for the devolved countreis without their consent; this is movement along the spectrum.
* Confederation -> Federation. USA was a confederation until Civil War, at which point the power of central government was such that it became a federal state. The EU could be heading this way.
* Devolution puts constraints on both devolved powers and on Parliament - the devolved powers are limited in the areas in which they can legislate on. Parliament is limited by convention - it can only legislate for the devolved regions with their respective Assembly's consent. The devolved powers are limited by law - they can only legislate in the areas in which their constitutional statutes specify that they can. (MacCormick - Questioning Sovereignty)
* Old conceptions of state sovereignty and the absolutism of the nation state are being transcended there is now politics beyond the sovereign state. The process does not abolish nations as politicocultural communities, and may make space for flourishing nations, and for nationalism in a tamed sense, compatible with the essential principles of political morality that deserve to be a permanent legacy of humanistic liberalism. Subsidiarity is the key.
* The forms of political decision making that are required must be as close to the individuals affected as is reasonably possible.
* The rise of European power will make choices between claims of different nations to cease to be choices between rival claims to sovereign statehood over disputed territories and populations, and to become choices about allocation of levels of political authority within a transnational commonwealth embracing many nationalities and cultural traditions or groupings. The principles that guide such choices will have to be worked out as more determinate norms developed out of the broad idea of subsidiarity.
* Throughout the EU there is a growing tendency to a kind of two-tier con-federalism. The pattern of devolution within the UK may be interpreted as a further instance of quasi-federalism inside a state which itself is confederated with the other member states of the EU. There remains the acute problem of how to deal with England within this two tier federation - is it to be a federal state
within the UK, or a patchwork of federal regions? There have been proposals for federal regions, but no one is suggesting the a sub-division of English Common law, and so legislative power devolution is unlikely to extend beyond Scotland and Northern Ireland. Perhaps the best idea would be to aim for a constitutional settlement recognizing England as one state of a federal UK, establishing a separate Parliament and executive branch to handle matters devolved to the English state. This is the least workable solution of all, due to relative economic weight and population size among the units to be federated. England has 9/11 of the UK population, yet federal government presumes some equilibrium among the federated units. In the USA some states have larger populations and economies, but they are matched by other larger states, and the smaller states have safety in numbers. Were the UK to have a federated England, it could override the smaller states, or there would be severe democratic deficit in any blocking arrangement that enabled the two-elevenths to protect their position against the nine.
* The only way out is to regionalize England, but there is no democratic will in that direction. Perhaps the best way is just to put up with the imbalances. The current situation though sets up the possibility of England's government being disproportionately affected by representatives from other countries, depending on electoral arithmetic, and on the other hand entails that in most instances the policies and politics of the UK are in the hands of the English majority.
* One solution may be separate membership within the EU, or the creation of the Council of the Isles - an intergovernmental consultative body that will comprise heads of governments of the UK, from the devolved administrations, and from the constitutionally independent islands. This would allow national self-government with an acknowledgement of special historical bonds of solidarity among the countries. Fellowship within a confederal commonwealth is more readily achievable than any attempt to transform the UK into a federal state.
* The Coalitions Negotiations Agreement contained promises to implement proposals from the Calman Commission regarding changes to devolution to Scotland, to offer a referendum on further Welsh devolution and to establish a Commission to consider the English question.
* History: Military conquest of Wales by England in 1282. 1536 Act of English Parliament united Wales with England - required English to be used, established an administrative system on English lines and granted Welsh representation in English Parliament. Mid-19th Century - Acts of Parliament applying only to Wales began to be passed, departments specifically for Welsh affairs established, Welsh Church Act disestablished Church of England in Wales. Welsh Language Act 1967 - Welsh may be spoken in any legal proceeding, and ministers may prescribe its use for documents. Welsh Language Act 1993- English and Welsh are equal.
* Government of Wales Act 2006
* Under the Government of Wales Act 1998, the National Assembly for Wales had no general power to make laws, and was a quasi-executive body limited to making secondary legislation. Its composition is similar to that of Scottish Parliament, but smaller - 40 single-member constituencies elected by simple majority, and 20 members by regional proportional representation.
* This act re-enacted much of the 1998 Act, but with further provisions. The Assembly still has no general legislative power, so it is consulted each year before the UK government draws up its legislative programme for Westminster and some laws may be made in this way to meet Welsh needs.
* Executive powers are vested in the Welsh Ministers - the Welsh Assembly Government.
* Part 3 of the 2006 Act empowers the Assembly in the next phase of devolution to make laws known as Assembly Measures on matters devolved to it by Legislative Competence Orders. Part 4 provides for the granting of more general legislative powers. Before it can come into
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