l and political roots. o We saw in Chapter 11 how political and legal power has moved 'upwards' from the national UK government and Parliament to the institutions of the European Union. In a contrasting process, the UK Parliament has started an intermittent process of 'devolving' power 'downwards' to regional governments in Wales, cotland and !orthern Ireland. "fter #riefly comparing devolution to federalism and the historical development of the United Kingdom as a single nation state, we will loo$ at the current status of the devolution process in cotland, !orthern Ireland and Wales, e"amining the #e$ statutes that underpin them.
%he roles of the secretaries of state for cotland, Wales and !orthern Ireland will %e considered, together with the mechanics of managing their relationships with the Westminster Parliament through the use of concordats. &he so&called ''nglish (uestion' and the possi#ility of regional government within 'ngland will #e reviewed, in addition to the functions and legislative powers of local authorities in 'ngland. 'inall$, we will loo$ #riefly at future developments, considering whether a Welsh legal system is developing and some of the potential implications of the cottish independence referendum scheduled for ()1*.
)*.) Political geography of the United Kingdom &he #e$ point to note is that the com#ined populations of cotland, Wales and !orthern Ireland represent only )+ per cent of the entire UK population.
)*., -omparing federalism to devolution .ederalism has %een defined #y "ndrew cott in ''ederalism' in P. Cane and +. Conaghan ,eds- &he !ew ."ford Companion to /aw as0 o ...an organisation of government in which the authority to govern is divided #etween a central /national0 government on the one hand, and a num#er of constituent regions, provinces, states or other territoriall$ distinct political authorities on the other hand. 1 $ey feature is the clear and defined division of competences #etween the regions and the federal government. Usuall$, this would #e set out in a written constitution.
1c&ivi&$ 1oo$ at the following we#site of the -anadian government0 If $ou were a resident in 2ancouver in the Province of 3ritish -olum#ia, which #ody would #e responsi#le for4 o 5our children's education6 &he 2ritish Colum%ia provincial government. o 5our old age pension6 &he 2ritish Colum%ia provincial government and the federal government o Inland fisheries off the coast of 3ritish -olum#ia6 &he federal government.
Do the divisions of responsi#ility set out seem sensi#le for a geographically huge country such as -anada6 o 7verall, the #alance seems sensi#le. o It is noticea#le that the provincial government is responsi#le for some of the $ey areas affecting individuals' lives, such as hospitals and education. 3y contrast, the 8oyal -ommission on the constitution defined devolution as 'the delegation of central government powers without the relin(uishment of sovereignty'.
)*.* Development of the United Kingdom into a nation state /isten to the we%cast on the 3/E outlining the wa$ in which the constituent nations of the United Kingdom came together through con(uest and political and economic advantage.
)*.9 %he "ct of Union with cotland ):;+ &his is one of the $ey constitutional documents of the United Kingdom which re(uired an e(uivalent "ct of Union to %e passed #y the cottish Parliament. &he language used in the "rticles of the 1ct indicate that its draftsmen intended it to #e treated as a form of 'higher law' with special protection from future changes #y the new Parliament of <reat 3ritain. We have already considered in -hapter * how this claimed special status clashes with the doctrine of parliamentary supremacy.
1c&ivi&$ 4ead 1rticle 1 of the 1ct of Union with cotland 15)6 and identif$ which words are, argua%l$, claiming a status of creating a higher law. &hat the two Kingdoms of 'ngland and cotland shall upon the 'irst da$ of 7a$ which shall %e in the $ear .ne thousand seven hundred and seven and for ever after #e united into one Kingdom #y the name of <reat 3ritain 1nd that the Ensigns 1rmorial of the said United Kingdom %e such as 8er 7a9est$ shall appoint and the Crosses of t :eorge and t 1ndrew %e con9o$ned in such manner as 8er 7a9est$ shall thin# fit and used in all 'lags 2anners tandards and Ensigns %oth at ea and /and.
)*.= %he cottish devolution settlement &he first serious attempt to esta%lish cottish devolution too# place in )>:?, when the 1a#our government managed to pass the cotland "ct )>:? in the UK Parliament. o In a distinct %rea# from normal constitutional practice, it was felt to #e politically important that the people of cotland ,voters in England, Wales and !orthern Ireland were not as#ed to participate- should also have a chance to vote in a referendum on the issue. o "lthough a ma@ority voted in favour, the turnout was low and the "ct was repealed. o %his did, however, set a precedent for the use of referendums in ;uestions of devolution.
In )>>: the new 1a#our government was in a much stronger political position and, in accordance with its manifesto promise, held a referendum as$ing the cottish people whether they wanted a cottish parliament and whether it should have limited income tax raising powers. o "fter securing ma@orities for %oth ;uestions, the cotland "ct )>>? was passed creating the cottish Parliament.
)*.=.) %echnical framewor$ for cottish devolution We saw at ection 1<.( how the different responsi%ilities of government are allocated %etween the Canadian federal government and the provincial governments. ection ,> of the cotland "ct )>>? provides that the cottish Parliament's legislative competence extends to all areas of law ,with a few limited e"ceptionswhich are not 'reserved matters'. %he reserved matters are set out in chedule =. &he cotland "ct ,;), made further changes to the devolution settlement in response to the recommendations of the Calman Commission, including giving the cottish Parliament the power to set a separate cottish income tax rate.
1c&ivi&$ 1nswer the following ;uestions on the cotland 1ct ()1( What is the effect of s.))6 o 1egislation relating to "ntarctica %ecomes a reserved matter under chedule = to the cotland 1ct 1==>, ma$ing it su#@ect to the UK Parliament. o &o date, the cottish Parliament has not, in fact, attempted to legislate for "ntarctica's penguins Which UK ta" on land transactions is to %e replaced %$ a cottish land transactions ta"? o %he stamp duty land tax will now only apply in 'ngland, Wales and !orthern Ireland4 s.,>.
1c&ivi&$ 4ead the cotland "ct )>>? /Aodification of chedule =0 7rder ,;)* What is the effect of the order6 o Bolding a referendum on cottish independence ceases to #e a 'reserved matter' provided it is held #efore *) Decem#er ,;)9, is not held on the date of any other referendum and includes only one (uestion on the #allot paper.
)*.+ %he Welsh devolution settlement &he cultural and political context of Welsh aspirations for at least some degree of self@government has %een significantly different from the situation in cotland. o 1lthough there had %een some legal differences %etween Wales and England, notably relating to the protection of the Welsh language under the Welsh Language Act 1993, Wales and 'ngland have #een much more closely entwined politically, legally and economically for man$ $ears. &he /a%our government's Wales 1ct 1=5>, which proposed devolution, was re@ected in the su%se;uent referendum. In )>>: the new 1a#our government held a Welsh referendum proposing a more limited form of self&government for Wales than the option offered to cotland.
2$ a narrow ma@ority, the Welsh electorate voted in favour of the proposals which were enacted in the :overnment of Wales 1ct 1==>. " new !ational "ssem#ly was created, %ut the initial failure to create a clearly separate Welsh government was criticised. Part 9 of the <overnment of Wales "ct ,;;+ has, since it was %rought into force in ()11, ena#led the "ssem#ly to pass laws in the form of "cts of the "ssem#ly in a num%er of 'su#@ects' set out in chedule :.
1c&ivi&$ 'ind the 'ood 8$giene 4ating ,Wales1ct ()1< Consider the duties of the 'ood tandards 1genc$ under s.1* and the 'ood tandards 1genc$'s own description of its wor# in Wales. Do you thin$ it is in the interests of Welsh consumers and restaurants for a separate hygiene scheme to #e esta#lished6 &he . " descri#es as a strength its a#ility to 'ta$e into account specific Welsh needs and issues, whilst still ensuring a consistent, UK&wide approach to food safety which, of course, does not recognise political or geographical %oundaries'. "ccounta#ility to the !ational "ssem#ly ma$, in time, lead to different standards #eing applied in Wales from 'ngland. %his may add to cross&#order food #usinesses' costs #ut may ma$e Welsh food safer too
)*.: Devolution in !orthern Ireland It is one of the ironies of UK politics that the smallest element of the four 'nations' ,confusingl$, !orthern Ireland is often referred to as a 'province'- in the Union is the most #itterly politically divided. &here is a deep religiousCpolitical divide #etween ProtestantsCUnionists ,traditionall$ lin#ed to the colour orange- and 8oman -atholicsC !ationalistsC8epu#licans ,lin#ed to the colour green-. %hese two communities, whose extremists were responsi#le for terri#le terrorist atrocities during the so&called '%rou#les' in the 1=5)s to the 1==)s, unsurprisingl$ had deeply divergent political aspirations in relation to devolution. &he Unionists sought to maintain their political domination of !orthern Ireland #y devolved government which gave them, as
the ma9orit$ communit$, as much power as possi%le within the United Kingdom. %he !ationalists, while maintaining the aspiration that !orthern Ireland would eventually #ecome part of a united Ireland with the Irish 8epu#lic, sought to challenge and mitigate Unionist domination in local government. In the light of this situation, it is to the credit of successive UK governments that the$ persisted so hard in their efforts to reconcile the different factions #y developing a form of devolution uni(ue to !orthern Ireland. &he peace process in !orthern Ireland eventuall$ led to the '<ood .riday' "greement in )>>?. &he agreement, which was endorsed #y referendums in !orthern Ireland and the Irish 8epu#lic, esta#lished the !orthern Ireland "ssem#ly.
ection 9 of the !orthern Ireland "ssem#ly "ct )>>? created three categories of legislative competences. o 'xcepted matters0 these were matters never intended to #e devolved, including defence and nationality0 chedule (. o 8eserved matters0 these were matters which ma$ %e devolved in the future, including civil aviation0 chedule <. o %ransferred matters0 these were matters that have #een transferred to the "ssem#ly, including police and @udicial matters. "cts of the !orthern Ireland "ssem#ly tend to reflect the political priorities of the still divided communities, %ut the focus on loo$ing #ac$ at past miseries has the potential for healing.
&he re(uirement for cross& community colla#oration is #uilt into the operation of the !orthern Ireland 'xecutive where the .irst Ainister ,a Unionist representing the largest part$- and the Deputy .irst Ainister ,a 8epu#lican representing the second largest part$- are re(uired to cooperate in a num#er of important ways.
1c&ivi&$ /oo# at the In;uir$ into Bistorical Institutional "#use /!orthern Ireland0 "ct ,;)* at0 What was the o%9ective of the 1ct? &o set up an in;uir$ into child a%use in a variet$ of pu%lic institutions which loo#ed after children %etween 1=(( and 1==A Who is responsi#le for appointing mem#ers of the in(uiry6 &he .irst Aminister and Deputy .irst Ainister are @ointly responsi#le0 s.(.
)*.? %he roles of the secretaries of state for Wales, cotland and !orthern Ireland We have seen how certain areas of polic$ affecting these countries have %een retained %$ the UK Parliament. Ainisters for the relevant UK government departments would normally ta$e responsi#ility for them, for e"ample, the Ainistry of Defence remains responsi#le for cottish military #ases, %ut part& time ecretaries of tate for Wales and cotland have #een retained with responsi#ilities for representing those countries interests in the UK ca#inet, as well as supervising devolution more generall$. !orthern Ireland retains a full& time ecretary of tate.
1c&ivi&$ 4ead the following !ews 4elease ,dated 1( 7arch ()1<- from the Wales .ffice Which three proposals outlined in the <reen Paper has the UK government decided to adopt6 o &he "ssem#ly will move from four& to five&year terms. o -andidates for the !ational "ssem#ly will #e a#le to stand in #oth a constituency and a region at the same time. o "ssem#ly mem#ers will no longer also #e a#le to sit as APs in the UK Parliament.
Which proposal did it decide not to adopt and why6 o -hanges to "ssem#ly constituencies will not ta$e place %ecause the #oundary commissions for 'ngland, Wales and cotland will now report on UK parliamentary constituencies in ,;)? not ,;)=, as originally planned.
)*.> Intergovernmental relations <iven that the different governments of Wales, cotland, !orthern Ireland and the UK Parliament share many common interests due to geographical proximity and overlaps #etween their powers, mechanisms for discussions %etween them can %e significant. &he Doint Ainisterial -ommittee /DA-0 is one formal method for discussions.
1c&ivi&$ 4ead the following description of the DA- on the cottish government Who chairs the plenary session6 o %he Prime Ainister. Which European institution does the domestic session resem%le and wh$? o &he -ouncil of the 'uropean Union also draws its mem#ership from ministers of the individual governments whose portfolios match the topics #eing discussed.
"greements #etween the different governments are commonly recorded in the form of concordats. 1c&ivi&$ 'ollow the lin# to the agreement #etween the UK government and the cottish government for a referendum on independence for cotland. 1nswer the following ;uestions. What decision in relation to the franchise for the referendum is given to the cottish government and cottish Parliament? o Whether or not the franchise should include those of )+&): years of age What will #e the 'regulated period' used in relation to campaign finance for the referendum?
i"teen wee#s ending with the date of the referendum. )*.);%he 'nglish (uestion & regional government within 'ngland6 o 1 representative of the -anadian provincial government of 3ritish -olum#ia visiting the ancient 'nglish city of Bor# might reasona#ly wonder which 'nglish region or province they were in. "lthough there is a strong regional pride in %eing from Bor#shire, #ut there is no democratically elected regional government for 5or$shire. :iven that, as we have seen at ection 1<.1, the population of 'ngland comprises ?9 per cent of the United Kingdom, this is a gaping hole in the devolution settlement.
1c&ivi&$ If a rule that only APs with 'nglish constituencies had #een a#le to vote on the Bigher 'ducation 3ill ,;;*&;9 ,which introduced fees for English universities- had %een applied, how would the result have #een different6 o %he government ma@ority of five would have #een replaced #y a defeat #y )= votes. Why did the cottish !ational Party / !P0 vote on the Bigher 'ducation 3ill ())<@)*? o 3ecause it had implications for cottish higher education as well.
What was 1ord .alconer's view of the possi#ility of an 'nglish Parliament6 o 8is view was that it would inevita#ly lead to the #rea$& up of the union, due to the overwhelming dominance of 'ngland. o 8e argued that *; per cent of the population was the most any federation could cope with whilst avoiding complete domination of the other parts. o !ote, our -anadian visitor might point out that the largest -anadian province ,%$ population- does, in fact, contain approximately *? per cent of the population of -anada ,i.e. according to the ()11 census-.
What political reason did 1ord trathclyde use to @ustify his argument in favour of limiting the rights of cottish APs to vote on English matters in the 8ouse of Commons? o <rowing opposition to the current arrangements among the 'nglish electorate.
)*.)) 1ocal government functions 1ocal authorities in the United Kingdom are a disparate group of elected #odies with varying powers and relationships with other councils, the devolved governments and the UK government. 'ven within 'ngland the effects of several decades of reorganisation can #e seen in the form of 'unitary councils', which carry out all local government functions in their areas, and geographicall$ overlapping councils such as !orth 8ertfordshire Cistrict Council and 8ertfordshire Count$ Council, %oth of which provide services to the author. Despite continuing distrust of local government %$ the UK government ,where the instinct to centralise power is ver$ strong-, important functions remain in the hands of local politicians. &hese include maintaining highways, planning functions and
running many /#ut not all0 schools. ection ) of the 1ocalism "ct ,;)) is an exception to the general trend of central government and the UK Parliament limiting and eroding the importance of local government. It provides for a 'general power of competence' which allows local authorities to 'do anything that individuals generally may do'. &he effects of s.) have not yet #een wor$ed through and any sense of li#eration council mem#ers may have felt is #ound to #e tempered #y the reality of heavy cuts in the su%sidies from central government to local government.
1c&ivi&$ 4ead the discussion of Aanydown -ompany 1td v 3asingsto$e and Dean 3orough -ouncil ,()1(What was the su#@ect matter of the dispute6 o &he council had ac(uired a >>>&year lease from 7an$down with a view to developing it as a housing development using its powers under the %own and -ountry Planning "ct. o Following a change in administration, the council decided no longer to promote the development.
Why was s.) not an effective defence for the council in relation to the claims for @udicial review6 o &he #e$ reason was that the council had not purported to #e acting under s.) 1ocalism "ct ,;)) o Instead it had used the %own and -ountry Planning "ct )>>; as the statutory #asis for its decisions. o It could not su#se(uently claim that its actions were @ustified #y using s.).
)*.), 1ocal government & legislative powers 1ocal authorities have powers under a num#er of "cts of Parliament to ma$e delegated legislation covering their local areas in the form of #y&laws &he 'parent' statutes may re(uire certain procedures to #e carried out, such as pu#licity or the approval of the secretary of state, #efore the #y&laws can #e approved.
1c&ivi&$ 'ind the !orth Bertfordshire District -ouncil 3y&laws relating to acupuncture, tattooing, cosmetic piercing, electrol$sis, semi@ permanent s#in colouring at0 www. north@ herts.gov.u#Dinde"D%usinessDlicensingD s#inEpiercingElicensing.htm and answer the following ;uestions. Under which statute were these %$@ laws made? What are the re;uirements of the %$@ laws in relation to needles? Who confirmed the %$@laws after the council's seal had %een affi"ed?
)*.)* " Welsh legal system6 1n inherent difficulty with granting devolution and, in particular, law@ ma#ing powers to the Welsh 1ssem%l$ is that Wales currently has no separate legal system. &he legal @urisdiction is descri%ed as '%he law of 'ngland and Wales'. cotland and !orthern Ireland have their own legal systems already. &he Welsh "ssem#ly #egan a consultation on the possi#ility of creating a separate Welsh legal system in ,;),.
1c&ivi&$ Why did the organisation '%rue Wales' oppose a separate Welsh legal system6 o 2ecause of cross&#order issues as well as the #elief that it would lead to the #rea$&up of the union. What practical changes would a Welsh legal s$stem lead to? o " Welsh @udiciary. o " Welsh court system. o Welsh cases could only #e dealt with in Wales.
)*.)9 -onstitutional implications of a 'yes' vote in the cottish independence referendum We have alread$ %riefl$ mentioned the ()1* referendum on independence for cotland. Inevita%l$, when partition of an existing state #ecomes a serious possi#ility politically, many practical and constitutional issues #egin to emerge.
1c&ivi&$ 4ead the e"ecutive summar$ of the appendi" to the UK government report cotland "nalysis4 Devolution and the Implications of cottish Independence Why did the authors consider that the status of cotland #efore the "ct of Union in ):;: would #e of little or no relevance6 o &he %reaty of Union does not currently 'sound' as an international treaty under international law.
What did the authors consider would #e the most li$ely status of the remainder of the United Kingdom and cotland in international law after cottish independence? o &he remaining United Kingdom would inherit all of the existing United Kingdom's international rights and o#ligations. o cotland would #e treated as a #rand new state which would pro#a#ly have to apply for mem#ership to the United !ations and 'uropean Union.
o &he #rea$&up of the oviet Union, following which 8ussia inherited its right to a seat on the U! ecurity -ouncil, was cited as the most relevant historical example.
)*.)= ummary .ederalism is a form of political government where%$ authority to govern is divided #etween a central government and a num#er of constituent regions, provinces or states. Devolution is a method of government where#y central government powers are delegated without relin(uishing sovereignty. &he cotland "ct )>>? extends to the cottish Parliament legislative competence in all areas of law, unless they fall within defined 'reserved matters'. o &he cotland "ct ,;), has made some ad@ustments to the 'reserved matters', including permitting the cottish Parliament to hold a referendum on independence.
&he <overnment of Wales "ct )>>?, as amended #y the <overnment of Wales "ct ,;;+ permits the !ational "ssem#ly of Wales to pass "cts of the "ssem#ly in certain specified 'su#@ects' ,areas of law-. Devolution in !orthern Ireland has #een a tortuous political process due to the deep religious and political divisions %etween the Unionist and !ationalist communities. o %he !orthern Ireland "ct )>>?, which esta#lished the !orthern Ireland "ssem#ly, divided legislative competences into 'excepted matters @ these were never intended to %e devolvedF 'reserved matters' @ these ma$ %e devolved in the futureF and 'transferred matters' @ these matters have %een devolved.
&he UK government's ecretaries of tate for cotland, Wales and !orthern Ireland retain residual responsi#ilities for devolution matters and represent those countries' interests in the UK ca#inet. &he Doint Ainisterial -ommittee ,+7C- is a mechanism for ministers from the devolved governments to meet each other and relevant UK government ministers to discuss common interests and issues. "greements reached #etween the different governments at the DAare recorded in the form of concordats. o 1 recent example is the agreement #etween the UK and cottish governments on the referendum on cottish independence.
&he ''nglish (uestion' deals with the constitutional anomaly of cottish, Welsh and !orthern Irish APs in the 8ouse of Commons voting on matters that have #een devolved and therefore only affect 'ngland. 1ocal authorities /councils0 have limited executive powers in certain areas such as planning and education. o %hey have a 'general power of competence' under s.) of the /ocalism 1ct ()11. 1ocal authorities are a#le to ma$e #y&laws as delegated legislation. &he Welsh "ssem#ly is considering the possi#ility of creating a separate Welsh legal system with its own courts and 9udiciar$.
&he constitutional implications of cottish independence are currently #eing de#ated. o &he UK government #elieves that cotland would #e treated as a #rand new state under international law.