DEVOLUTION AND THE UK CONSTITUTON

1. DEVOLUTION AND THE UK CONSTITUTON

2. Principle argument • Devolution is a dynamic process which has already had many knock on implications for the UK constitutional system. • While it appears in some respects irreversible in the sense that it is not foreseeable that any Westminster government would abolish the devolved institutions without consent, there has been no clear constitutional objective. • Devolution should not be regarded as the first step towards a federal system. • Rather the situation regarding each devolved nation has been constantly developing and the response to this has been and continues to be pragmatic.

3. Main objectives • To set out the main characteristics of each devolved system and explain how these have been evolving since 1999. • To explain how the core principle of parliamentary sovereignty have been maintained under devolution. • To mention the financial parameters of devolution and the issue of policy divergence in the context of present financial crisis. • To assess the prospects for the future mainly in relation to Scottish Independence.

4. Elizabeth 1 died in 1603 without an heir

5. She was succeeded by the son of Mary Queen of Scots James VI of Scotland who became James I of England

6. The Act of Union 1707 meant that the Scottish Parliament consented to combined with the Westminster Parliament

7. Reasons for devolution • Scotland: separate nation until the unification of Crown 1603 and Parliaments in 1707. • Nationalist aspirations revived in 1970’s. Coincided with entry into EU and discovery of North Sea oil of Scottish coast. • Wales: administrative integration since late middle ages but retained distinct culture and language. • Northern Ireland: historical problem relating to the repeal of the Ireland Act 1800 conferring nation status on the Irish Republic while granting devolved government to north. Problem in reconciling two communities divided on sectarian grounds. • Ireland, Scotland, Wales historically separate and in this sense very different from inventing regional government/devolution for England.

8. Prelude to devolution • Increasing trend towards centralisation under the Thatcher/Major governments 1979 -1997. • Decline in political support for the Conservative party. Virtually no seats left in Scotland and Wales. • Emergence of nationalist politics in Scotland and Wales. • Labour and Liberal Democrats go into 1997 election with a commitment to devolution. • Northern Ireland moving towards a peace settlement particularly ‘Good Friday’ agreement of 1998.

9. Labour government returned with big majority after 18 years of Tory rule (Donald Dewar, Tony Blair and Ron Davies).

10. Referendums • Devolution was introduced following referenda in Scotland, Wales and Northern Ireland. • The electorate in England were only consulted to the extent that they returned a pro devolution party Westminster in 1997. • In the Scottish referendum approval for tax raising powers as well as for devolved government. • Referendum in Wales was only marginally in favour of going ahead. • A referendum has since been held to approve the grant of law-making powers to the Welsh Assembly.

11. How devolution was introduced • Before devolution a separate government department existed for Scotland, Wales and Northern Ireland represented at the Cabinet table by a Secretary of State. • Scotland in particular remained distinctive with its own educational and legal system. • Officials from these departments formed the core of the devolved administrations when they were set up in 1999. • Also legislation intended for Scotland and Wales underwent a distinct procedure. It was scrutinised by the Scottish/Welsh Grand committee comprising MPs from Scotland/Wales.

12. Devolution legislation • Devolution established by statute: Scotland Act 1998, Government of Wales Act 1998; Northern Ireland Act 1998. • Founding statutes equivalent to constitutions for the devolved parts of the UK. • But these statutes not entrenched and have already been amended in significant ways. • Sovereignty remains with Westminster and for example EU matters negotiated by Westminster. • Each devolution statute different: asymmetrical re-distribution of powers (Spain/special regions).

13. Devolution compared to federal systems of government Federalism is a method for sharing sovereignty, and not just power, between governments within a single state. With devolution sovereignty has remained with Westminster. No constitutional amendment required to reverse or modify the system. As a constitutional device it presupposes a formal political agreement establishing both the levels of government and their spheres of authority. Federal systems are usually symmetrical with all the states having the same institutions and powers. Devolution has allowed individually fashioned systems for each part of the UK. As with federal systems the national government nearly always responsible for national finance, foreign affairs, international trade and defence, other functions vary with system.

14. Scottish Parliament

15. Scottish Parliament

16. Scottish Devolution Scotland Act 1998 introduced a Scottish Parliament of 129 members, elected every 4 years. full legislative powers over e.g., education, law, courts, prisons, economic development, agriculture, fisheries, local government, environment, housing, passenger and road transport, forestry and the arts. But macro-economic issues, monetary and fiscal policy remain with Westminster. Parliament determines its own procedures - new committee system and framework for passing legislation introduced.

17. Elections/Scotland and Wales • Method of election for Scotland and Wales is the partly proportional Additional Member System (AMS). • Fixed four year terms • Electors have two votes one FPTP and the other for a list. • E.g., in Scotland 129 MSPs elected for 73 constituencies the remaining 58 from the list - this allows a redistribution to take place on the basis of the overall popularity of parties - smaller parties are less disadvantaged, especially in Scotland.

18. Protecting sovereignty General power to legislate is given to the Scottish Parliament and Northern Ireland Assembly. However, this power is limited in several ways: For example in relation to Scotland under SA s.29: • Certain enactments are specifically listed in SA Schedule 4 as being protected from modification. (2) Also 'reserved matters' in SA Schedule 5 are outside the competence of the SP. (3) Further prevented from enacting legislation with extra territorial effects, contrary to EU law and in conflict with the ECHR.

19. Protecting sovereignty General power to legislate granted to Scottish Parliament, NI Assembly and now Welsh Assembly. However this is limited in a number of ways: • Certain enactments listed as immune from modification e.g. sched. 4 SA 1998. • Reserved matters listed as outside of competence e.g. shed. 5 SA 1998. • Further prevented from enacting legislation with extra territorial effects, contrary to EU law and in conflict with the ECHR.

20. Procedures protecting sovereignty SA requires pre-legislative and post-legislative scrutiny under ss.31 and 32 (similar for Wales and NI). Presiding Officer decide whether a bill falls within legislative competence prior to introduction. Prior to Royal Assent the law officers consider whether the measure is within legislative competence. A bill can be referred to the Judicial Committee (soon the Supreme Court) to decide the legislative competence. The Secretary of State has additional powers to intervene under SA s.35 if he/she has reasonable grounds to believe that legislation beyond the competence of the SP.

21. Legislative consent motions • At the moment when devolution was introduced it was envisaged that a (Sewel) convention would emerge acknowledging that the UK Parliament will not normally legislate in devolved areas without consent of the devolved legislative body. • In practice, to the surprise of many, legislative consent motions have been a frequent occurrence e.g. for practical reasons to avoid duplication where EU directives etc have to be implemented.

22. Nationalists win a majority in the Scottish Parliament

23. National Assembly of Wales

24. Edward I responsible for defeating the Welsh and building the formidable castles which remain to this day

25. Occasional rebellions e.g. at the beginning of the fifteenth century

26. Act of Union with Wales of 1536 combined the administration of the two nations

27. Welsh Devolution Phases to date: Government of Wales Act 1998 Government of Wales Act 2006 (following Richard Commission report) Elected Assembly of 60 members Cabinet System of government. First secretary and members of Executive Committee accountable to the Assembly. Legislation for Wales only through Westminster Parliament Financed under Barnett formula (no tax raising powers)

28. Competences devolved • GWA 1998 s.22(2) and sched 2 e.g. agriculture, forestry, fisheries and food, environmental and cultural matters, economic and industrial development, education and training, health, housing, local government, social services, sport and tourism, town and country planning, transport, water and flood defences and the Welsh language. • Plus responsibility for Welsh quangos devolved • The Government of Wales Act 2006 creates an executive body, the Welsh Assembly Government (GWA, Part II s45ff).

29. Government of Wales Act 2006 • Under the 2006 GWA the NAW granted the power to pass a new form of delegated legislation termed ‘assembly measures' (see GWA Part III ss.93-102). However, this involves a special procedure between the Welsh Assembly and the Westminster Parliament. • Plus capacity to make subordinate legislation. • Full legislative capacity conferred but only after a referendum.

30. Devolution Northern Ireland

32. Northern Ireland The Northern Ireland Act 1998 passed following Good Friday agreement 1998. System of compulsory coalition government and a system of guaranteed power sharing. (1) 108 member Assembly elected by Single Transferable Vote STV based on 18 Westminster parliamentary constituencies. (2) The Assembly has legislative competence over devolved matters e.g., agriculture, economic development, education, environment, health and social services. (3) The government is formed with power sharing at every level by a special system of election to ensure representation of both communities. The First Minister and Deputy First Minister from different communities and ministerial portfolios shared.

33. Parallel consent (4) NIA avoid any possibility of legislation being forced through that might adversely affect any minority community. Voting arrangements ensure that one community cannot interfere with basic civil rights of the other i.e. parallel consent on important issues through qualified majority voting

34. Supra-national dimension (5) North-South ministerial council brings together members of the executive of the Northern Ireland Assembly and representatives of the Irish government for the purposes of co-operation on issues of common interest. (6) British Irish Council considers broader mutual interests with the UK and consists of representatives from the Scottish Parliament, Welsh Assembly, Channel Isles and Isle of Mann. (7) recognises principle of national self-determination to get over problems of nationalists wishing to be part of the Republic and Unionists wishing to remain with UK.

35. In summary UK system ‘asymmetrical’ different degrees of autonomy No devolved government for England Scotland: has been termed quasi-federalism Elected Parliament or Assembly with competences for many domestic matters in the hands of devolved bodies Scotland Wales and NI have law making powers over devolved areas. Scottish Parliament granted limited tax raising but not used. Northern Ireland controversial area of security and policing not devolved as part of Good Friday Agreement but this was added by legislation following St Andrew’s Agreement.

36. West Lothian question • The fact that England has no equivalent level of government creates a number of constitutional problems. • Scottish, Welsh, NI MPs at Westminster vote on matters concerning England. • English MPs no longer vote over devolved matters • Westminster MPs representing devolved parts of the UK have little to do for their constituents as policy implemented locally. • No direct accountability at Westminster for devolved spending.

37. What about England? No equivalent level of government for England (51 million/84% population) but the asymmetry of devolution raises a number of constitutional issues. No support for an English Parliament but Westminster arguably has become one by default. Back door method: introduce measures to deal with West Lothian question e.g. voting restrictions for Scottish, Welsh, NI MPs Proposals for equivalent tier of English Regional government based on Regional Development Agencies. Prescott scheme a total failure following referendum in North East. London only part of England with additional tier of strategic government i.e. elected Mayor with Cabinet accountable to GLA (not equivalent to devolution)

38. Financing devolution

39. Justifying Barnett This formula was introduced in the 1970’s for a variety of reasons: (1) adjust spending levels to compensate for population sparsity in Scotland, Wales and NI; (2) Varying transport needs UK wide; (3) Higher relative levels of ill health; (4) Greater cost of rural education; (5) Acute levels of industrial decline and high unemployment; (6) Lower income per head in Scotland, Wales and Northern Ireland. (7) It avoided annual departmental haggling over allocations to Scottish, Welsh and NI Offices.

40. What is the Barnett formula? Barnett Formula is a block grant formala which sets percentages of changes in comparable expenditure in Great Britain. On the basis of population it proposes 85 per cent for England, 10 per cent of expenditure for Scotland and 5 per cent for Wales and 2.75 for NI. The Barnett formula allocates 10/85ths of the increases in comparable English provision to the Scotland program. The formula applies to the Scottish, Welsh and NI block grants which cover most of the expenditure within the responsibilities of the devolved administrations. Absence of ring fencing means that once the funds are handed over to them the devolved administrations can allocate according to their own preferences.

41. Dispute resolution Normally by way of concordats (soft law agreements) In the case of finance: ‘If there is disagreement between Treasury ministers and devolved administrations about changes to the Statement or about any aspect of its application to determining funding, the relevant devolved administration or Secretary of State can pursue the issue with Treasury Ministers’. If still not resolved then referred to ministers of devolved administrations and Westminster government through the Joint Ministerial Committee and finally to the Cabinet.

42. Devolution issues Challenges as devolution issues on the grounds set out below may be brought before the ordinary courts and may reach the UK Supreme Court on final appeal • whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is within the legislative competence of the Parliament • "A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or Act is incompatible with any of the Convention rights or with Community law". • A question whether a purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, incompatible with any of the Convention rights or with Community law

43. AXA General Insurance Ltd v The Lord Advocate [2011] UKSC Insurance company challenged validity of Damages (Asbestos-related Conditions) (Scotland) Act 2009 which would expose them to claims for asbestos related diseases because (a) it was incompatible with their ECHR rights and thus outside legislative competence and (b) by way of judicial review as unreasonable, irrational and arbitary exercise of legislative authority. Insurance policy a possession and they were victims but the 2009 Act pursued a legitimate aim. The means chosen by the SP were reasonably proportionate to the aim sought to be realised. In principle Acts of SP are subject to JR but only if the SP was to use its powers to abolish JR or diminish the role of the courts in protecting the individual not on the above common law grounds.

44. Scotland Bill/Model of Full Financial Responsibility Following Calman recommendations to be implemented in the Scotland Act 2012 means that Scotland will raise 10p in the pound of its income tax locally and the previous 3p tax raising power will be abolished. Further powers to raise taxes and for borrowing also included. Scottish Government prefers a fiscal autonomy model: All taxes with the exception of VAT set in Scotland Scotland would make a payment to Westminster to cover e.g. defence and foreign policy. Scotland responsible for all aspect of public spending Scotland would have borrowing powers New ‘Economic Agreement’ to ensure Scottish and UK economic policies complimentary.

45. Dynamics of devolution • Northern Irish devolution broke down four times over disarmament issues before current elections and re-launch in 2007 but now it appears to work. • Scotland since 2007 has nationalist (SNP) government with aspirations for independent status in EU, similar to Irish Republic. Additional competences likely to be given to Scotland. • Wales granted increased legislative power and may have the same law making powers as Scotland under the Government of Wales Act 2006 following assembly vote and referendum. • Increasing calls for political change for England e.g. at least revision of Barnett formula, at most English parliament. • Problem of voter fatigue and expense • Devolution was not a settlement but it has triggered an on going process.

46. Has devolution been a success? • Popular vote since 1999 has gone down • Potential for policy divergence e.g. emphasis in Scotland on social policies care for elderly and student grants. Similar in Wales. • Increase in powers of Welsh institutions • Scottish Nationalists in power in Scotland. Is this first step on road to independence? • Peace in Northern Island cemented by permanent resumption of power sharing by opposing factions. • Method of funding under Barnett remains controversial.