Public law 1: Multilevel governing in the UK

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23 Terms

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Why does the UKs constitution rest on conflicting ideas?

It rests on conflicting ideas: a merger of equals (between scotland and england), legal and poltical domination of Parliament, the Uk government and the management of regional autonomy = tension. But this may describe the constitution as power sharing or power diffusion

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What is the central government and the UK parliament responsible for?

It is responsible for policy matters affecting the whole of the UK

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What are devolved governments and legislatures?

They were created in 1999 for 3 parts of the country: Northern Ireland, Scotland and Wales.

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What are principle councils?

These are concerned with local government

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How was the government formed before devolution?

The UK formed a centralised political unit, with its policy making and law making led by the UK government and the UK parliament. The typical assumption at the time was that “most of the generalisation that can be made about politics in England and Wales apply with only minor qualifications to scotland and for most practical purposes its reasonable to treat the norther kingdom simply as part of a unified political unit called great britain.” - A. Birch, The British System of Government (1967, London: Allen & Unwin), p. 15.

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What was the labour governments involvement in the devolution process?

The Labour government in 1997 set out white papers which showed the governments plan for devolution in scotland and wales, faced with the popularity ie from the referendums, the conseratives accepted this.

Elections for the scottish parliament and national assembly of wales were held in may 1999 and devolved powers were transferred shortly after

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What was the devolution process for norther ireland?

Until 1800, Ireland was a separate kingdom ruled by England

Following the irish war of independence (1919-21) and the anglo-irish treaty (1921)the idea of home rule (self governing) was replaced by dividing it into two: ireland became a self governing dominion of the british empire and northern ireland exercised its option of withdrawing from ireland and remaining part of the UK

From 1972-98, the administration of Northern Ireland fell under direct rule by the UK government

Northern Irelands home grown constitution had to be accepted by and acceptable to all parties to it, so it had an internal and external dimension and a consociational and confederal character.

The agreement is binding in international law

Northern Ireland Act 1998 legally commits the UK government to relinquish part of its territory under specified circumstances. The constitutional status of Northern Ireland is not determined by Westminster Parliament, but by the wishes of the electorate. The British government is legally obliged under domestic law to enter negotiations on a united Ireland if the condition of majority consent is met - the principle of consent is so converted into a constitutional principal that highlights the different constitutional position of northern ireland from scotland and wales, where the british gov does not legally recognise a right to become an independent country.

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The devolution process for Wales

The first settlement occurred after a referendum result which favoured devolution

The government of Wales act 1998 made Wales a distinct political identity with its own National Assembly (but contrary to the idea of the separation of powers, the national assembly combined both executive functions and legislative and scrutiny activities.) The Assembly was also only granted secondary law making powers in specific areas

The Government of Wales Act 2006 replaced the previous act and formally separated the executive and legislative functions of the Assembly, it also enabled them powers to enact and scrutinise parliamentary legislation

Following a positive referendum in March 2011, this led to pull primary law making powers being given for the National Assembly

Wales Act 2017 led to the National Assembly of Wales being able to enjoy powers over any areas of policy, not specifically reserved to the UK

The 2017 Act s.1(1) also established them as a permanent part of the UKs constitutional arrangement and s.1(3) declares that they are not to be abolished except on the basis of the decision of Wales in a referendum

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The devolution process for Scotland

Between 1885-1999 the UK government decentralised a wide range of government functions in relation to Scotland ie the Scottish Office was staffed by central government officials, controlled by the Secretary of State for Scotland, and subject to the UK’s government majority in Westminster. In contrast to devolution, decentralisation is a feature of the unitary state which redistributes administrative power and decision making authority away from the centre but under the supervision of central government

The 1998 Scotland Act creates a unicameral Scottish Parliament and enables it to pass primary legislation.

The law and policy in devolved areas are now independent from UK politics at Westminster as the Scottish gov consists of minister appointed by the first minister of Scotland, approved by the scottish parliament, to which its accountable

But devolution also tries to shore up the Union ie section 28(7) of the scotland act 1998 iterates that the power of the scottish parliament to legislate in devolved areas doesn’t effect the power of UK parliament to make laws for scotland

September 2014 a referendum was held on the independence of Scotland, 55% voted to stay in the UK

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What two options do systems who allocate powers between 2 levels of government have?

1) define the powers that are exercised at national level and say that the sub-national unit has all other powers (reserved powers model)

2) define the powers of the sub-national unit, saying that all other powers are exercised nationally (conferred powers model)

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What is a benefit of devolution?

Different policies, authorised by different law, are being implemented in different parts of the UK. Distinctive regional policy, rather than the one sized fits all policy, brings decision making closer to communities and so allows them to tailor policies to suit their specific needs ie uni tuition fees introduced in England and Wales but not Scotland

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What is a drawback of devolution?

Political divergence can create practical problems for the UKs highly integrated economy, society, transport systems and business supply chains. Ie this issue was seen in COVID as the UK gov was responsible for the bulk of the economic measures, but key policy areas ie health and education are devolved and decision making power rested with the devolved governments. At the beginning of the pandemic, decisions regarding lock down rules were made jointly by the 4 governments, but the response soon gave way to divergence ie lockdown restrictions were eased at different times.

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The case for Scotland

The Scottish Parliament and Scottish government have powers over matters which are not expressly reserved to the UK.

In sch.5 of the Scotland Act 1998, general reservations are the constitution, regulation of political parties, foreign affair etc

The Scotland Act 2012 extended the devolution of tax powers to the Scottish parliament and the Scotland act 2016 conferred greater law making powers and executive functions with respect to welfare, abortion law etc

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The case of Northern Ireland

The Northern Ireland Act 1998 creates 3 categories: excepted matters (never intended to be devolved) ie control of nuclear weapons, nationality, UK tax, reserved matters (may be devolved but havent yet) ie navigation, civil defence, minimum wage and transferred matters ie education, health, employment

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The case of Wales

From 1998 - 2017, Welsh devolution provided for a conferred powers model where the national assembly had powers to make laws on specific subjects ie these were called the assembly measures, then the acts of the assembly and included agriculture, forestry, animals etc

The devolution model was changed by the Wales Act 2017 to one defined by reserved powers, schedule 7a uses the concepts of reservation etc to define the limits of the national assemblys powers. The matters of constitutional importance reserved to the UK Parliament include the constitution, public service, political parties

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What is the effect of devolution on Parliamentary Supremacy?

The scotland act 2016 and wales act 2017 (both enacted in the aftermath of the scottish independence referendum) made 2 key changes to the scotland act 1998 and government of wales act 2006.

The first change related to the authority of UK parliament to legislate on devolved matters and the second concerns the status of the devolved institutions as permanent.

Section 28 of the scotland act 1998 did not effect the power of the UK parliament to make laws for scotland but made it be recognised that the UK parliament will not normally legislate with regard to the devolved matters without consent of the Scottish Parliament.

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What is the Sewel convention?

It was incorporated in a Memorandum of Understanding between the UK gov and the devolved governments. Conventions are non-legal rules of good political behaviour that are accepted as binding by political actors, but cannot be judicially enforced.

Although [by way of s. 28(8)] the Sewel convention will be put on a statutory footing, the measure seems to have only symbolic significance, consolidating the idea that Scottish devolution is a permanent arrangement, the terms of which will not be changed unilaterally by the UK Parliament.” - House of Lords Select Committee on the Constitution, ‘Proposals for the devolution of further powers to Scotland’, 10th Report of Session 2014–15, March 2015. The use of the word normally in the convention makes clear that Parliament still does have the power to legislation even on devolved matters for scotland without the consent of their parliament


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The effect of the Miller case on the Sewel convention

The Sewel Convention has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures. But the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary, which is to protect the rule of law.” - R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5; [2018] AC 61

Ie they are stating that the sewel convention performs a vital constitutional function in the devoluntionary arrangements, but the legislative authority of Parliament remains unaffected

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What is the effect of the reference to a permanent devolved institution in s.63A of the Scotland Act 1998?

The section recognises that the devolved institutions are a permanent part of the UKs constitution and the purpose of this is to show the commitment of the devolved institutions and it declares that the devolved institutions are not to be abolished without a referendum

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Does the permanent devolved institution section of the scotland act 1998 comply with the parliamentary supremacy due it potentially being seen as entrenchment?

Although devolution has an impact on the UK constitution, it remains compatible the doctrine of parliamentary supremacy

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What are the intergovernmental relations (IGR)?

For any system with a decentralised governance, the constitution needs to operate as a coordination mechanism. The IGR has developed as part of “hidden wiring” Peter Hennessy, The Hidden Wiring: Unearthing the British Constitution (1995, London: Weidenfeld & Nicolson) of the constitution, but they are relation on informal relationships which has not been helped by the asymmetrical character of devolution of the 3 places

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Why is IGR important?

1) they are needed for dispute resolutions between the UK gov and the 3 devolved administrations

2) they operate as a forum for joint decision-making in shared policy areas

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What is the Supplementary Agreement A1.2 of the IGR? - Memorandum of Understanding and Supplementary Agreements: Between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee, October 2013


Collaborative working will be founded on the following principles:

  • to consider non-devolved matters which impinge on devolved responsibilities and devolved matters which impinge on non-devolved responsibilites

  • where the UK gov and devolved administrations so agree to consider matters if its beneficial to discuss their treatment in different parts of the UK

  • to keep the arrangement for liaison between the UK gov and the devolved administrations under review

  • to consider disputes