Public - Devolution

Devolution:

statutory transfer of certain powers from the UK Parliament to:

• Scottish Parliament (Holyrood)

• Senedd Cymru/Welsh Parliament

• Northern Ireland Assembly

The purpose of devolution:

• creates new law-making bodies but within a legally unitary state - UK remains legally sovereign

• UK Parliament should consult the devolved Parliament on matters; civil convention provision

• Devolution in the UK sits in between a purely unitary and purely federal system: powers are transferred, but the UK Parliament remains sovereign (is legally unitary as it has one supreme legislature) and could amend or even abolish a devolved institution

Unitary constitution:

• may have local/regional institutions

• institutions may have limited powers

• unitary powers may overlap with local or regional powers

• other institutions subordinate to unitary

Federal constitution:

• must have local/regional institutions

• institutions must have limited legal powers

• federal and state powers do not overlap

• judiciary has an important role in determining disputes, usually under a written constitution

Why devolution matters:

• Affects the laws applied in real cases

• Determines which legislature has authority

• Creates multiple sources of law and competing political mandates

• It is central to current constitutional debates (Brexit, independence, internal market)

3 categories of power:

• Devolved/transferred powers

Areas where devolved legislatures may legislate e.g. health, education, housing, transport within the region, and justice (Scotland & NI)

• Reserved powers

Retained by Westminster e.g. foreign affairs, defence, immigration, employment

• Excepted powers (Northern Ireland only)

Permanently outside devolution. Cannot be transferred e.g. Crown, nationality & immigration, currency, defence

Asymmetrical:

Devolution is not a single template, it's a series of political negotiations that reflect each nation's distinct identity, political, legal and historical context.

• Scotland uses a reserved-powers model (broad competence); anything not listed as reserved is devolved

• Wales began with a weak conferred-powers model (only what is listed is devolved), then moved to a reserved-powerrs model in 2017

• Northern Ireland uses a three-tier system (excepted, reserved, and transferred) + power sharing

Sewel convention:

• The sewel convention provides that Westminster 'will not norally legislate' in devolved areas without the consent of the devolved legislatures.

• It is political not legal: the Supreme Court in Miller 1 held it is not enforceable by judges, but it remains politically significant.

Primary v Secondary law making:

1998 Act - only secondary powers

2006 Act - 'measures' (halfway house)

2011 referendum - primary powers

2017 Act - reserved-powers model like Scotland

Key rationales to devolution:

1. Democratic responsiveness: Scotland and Wales were often governed by UK governments they did not vote for.

2. Distinct histories, languages, cultures, and legal systems (especially in Scotland) created strong pressures for institutional autonomy.

3. Governance efficiency: Policy can be tailored to local needs –  Scotland’s NHS structure, Wales’s social care model, and NI’s welfare and housing practices.

4. Peace-building (Northern Ireland); Devolution was central to the Belfast/Good Friday Agreement. Power-sharing is not optional – it is necessary for political stability.

5. Subsidiarity, regionalism, localism & administrative modernization: EU principles supported the idea that decisions should be made at the lowest effective level close to those affected & drawing on local expertise, knowledge, or opinion.

6. Nationalism and the independence question: For some, devolution was a step toward more autonomy; for others, a way to stabilise the Union.

7. Policy divergence and innovation: Devolution creates ‘policy laboratories’ e.g., Scotland’s minimum alcohol pricing, Wales’s organ donation opt-out, &NI’s distinctive community and education policies.

8. Accountability through fiscal powers: Devolved taxation powers, especially in Scotland, mean devolved governments increasingly raise as well as spend money.

Wales:

Late 13th Century; conquest by English crown; statute of Rhuddlan [1284]

Laws in Wales Acts 1536-1543

• Abolish separate Welsh legal institutions

• Extend English common law into Wales

• Integrate Wales into 'England and Wales'

• 1951 - Minister of Welsh Affairs

• 1964 - Secretary of State for Wales and Welsh Office

Wales - devolution

• No separate Welsh legal system and no autonomous Welsh Parliament

• Kilbrandon report: Recommends no legislative devolution for Wales and only a consultative/administrative assembly

Scotland

Pre 1707: Independent kingdom with its own Parliament, legal system and monarchy

Acts of Union 1707:

• Dissolve Scottish Parliament

• Create Kingdom of Great Britain

• Preserve Scots law, courts, church and education

• 1885 - Secretary for Scotland and Scottish Office

• 1926 - Secretary of State for Scotland

• 1939 - Scottish Office relocated to Edinburgh

Post 1707: Scotland has distinct legal and education systems and NO SEPARATE LEGISLATURE

Ireland/Northern Ireland

• English/British Control - Act of Union 1800

• 1921-1922: Ireland becomes independent (1937 Republic of Ireland)

• Northern Ireland (6 counties) remain part of the UK

• Government of Ireland Act 1920 - Devolved parliament and executive in NI

• Deep divisions between unionist/nationalist and Protestant/Catholics

NI: from devolution to direct rule

1921-1972: developed government in NI

NI Parliament dominated by unionists

Bicameral Parliament elected by plurality

Late 1960s: civil rights movement - violence - 'The Troubles'

1972: NI Parliament prorogued by Westminister

1980s/90s - UK/Irish governments work together

Devolution does not return until the Belfast/Good Friday Agreement (1998)

Kilbrandon Commission [1969-1973]

Tasks:

• Assess over-centralisation

• Consider Scottish and Welsh demands

• Think about the future of the union

• Conclusion: Westminster is 'over-centralised'

Proposals:

• Recommended legislative devolution for Scotland

• Recommended only administrative devolution for Wales

• No federalism

1979 Devolution referendums

40% OF electorate must vote yes

Scotland: 51.6% yes and 48.4% no  - failed threshold

Wales: 20.3% yes and 79.7% no   - failed threshold

Thatcher elected 1979 - devolution shelved for nearly 20 years

Result of referendums:

• Scotland Act 1998

• Government of Wales Act 1998

• Northern Ireland Act 1998

A devolved executive:

• A devolved executive = the government of Scotland, Wales and Northern Ireland

• Exercises devolved power over include: health, education, transport and housing

• Differences in the scope of transferred functions

How executives are formed:

• All devolved systems share the fact that legislature elects a First Minister

• Monarch appoints the First Minister

• First Minister appoints ministers

• Minister answer to legislature

Northern Ireland executive system:

• NI is different as the First Minister and deputy First Minister are not 'chosen' by parties voluntarily and instead, they emerge automatically as the largest party from the largest designation nominates the First Minister.

• The largest party from the 2nd largest designation nominates the deputy First Minister.

• Both offices hold equal power despite their titles. Unfair as it doesn't have to be 30%.

• Just has to have more than the other candidate, not 50%.

Executive held accountable through:

• Question time

• Committees

• Budget scrutiny

• Audit processes

• Ministerial codes

• Judicial review

• No-confidence mechanisms

Funding: the Barnett formula

Adjusts devolved block grants annually based on:

• Change in equivalent spending in England

• Comparability percentage

• Population share

It is predictable, transparent and avoids annual haggling

Criticisms:

• Not based on need; what happens if there is a natural disaster in one region?

• Preserves outdated 1970s funding levels

• Wales is historically underfunded

• Scotland retains higher per-capita baseline

• NI receives occasional additional funding

Barnett formula calculation example:

If England increases health spending by £1bn, and Scotland's comparability factor for health is 99%, with an 8% population share, what among for health will Scotland receive?

£1bn x 0.99 x 0.08 = £79.2m

The Scottish Government powers and structure:

Powers:

• General transfer of functions/executive devolution orders/Acts of the Scottish Parliament

• Must be compatible with the ECHR

• Secretary of State for Scotland - powers to intervene

Structure:

• First Minister

• Cabinet Secretaries

• Junior Ministers

• Lord Advocate & Solicitor General (law officers)

Executive-Legislature Relations (Scotland)

Tensions often arise around:

• Brexit and retained EU law

• Internal Market Act

• Trade agreements

• Constitutional issues (independence)

• Welfare reforms; high degree of political and constitutional friction

The Welsh Government functions

• Originally only a scheme of executive devolution and no general transfer of executive functions.

• Functions of the Welsh Office/transfers by Act of Parliament/orders in council Schedule 2 to the Government of Wales Act 1998.

• Placed on a formal basis by the government of Wales Act 2006 - sections 56-58.

• Slower and more organic process, driven by emerging practice.

The Welsh Government structure

• First Minister

• Cabinet Ministers

• Deputy Ministers

• Counsel General

Executive-Legislature relations (Wales)

• Smaller Senedd - fewer members of Senedd for scrutiny

• Committees still powerful

• Minority Labour governments common

• Cooperation agreements with Plaid Cymru shape policy

Northern Ireland Executive

Uses power sharing because of:

• Deep societal and constitutional division

• Legacy of the Troubles

• Implement the Belfast/Good Friday Agreement 1998

• Power-sharing executive; prevents domination by either community

• Prevent permanent exclusion of Irish nationalism communities

• Promote stability and equality in executive power

The NI executive power and structure

Powers:

Shorter lst of powers than the other devolved executives and other powers created by the NI assembly.

Structure:

• First Minister and deputy First Minister - nominated automatically by rules (ensures inclusion and equal powers)

• Ministers allocates proportionally - D'Hondt formula

• Junior Ministers

• Attorney General

Cross-community support, Section 4(5), Northern Ireland Act 1998:

• Cross-community support for annual budget and policy programme

• Parallel consent: ‘the support of a majority of the members voting, a majority of the designated nationalists voting and a majority of the designated unionists voting’

OR

• Weighted majority: ‘the support of 60% of the members voting, 40% of the designated nationalists voting and 40% of the designated unionists voting’.

• Petition of concern: Intended for minority protection but sometimes used politically → deadlock

Key features of devolved legislature:

1. They are statutory bodies - created by Westminster legislation

2. They have limited legislative competence - they cannot legislate on matter reserved to Westminster

3. Their powers have expanded over time

Tension between legal sovereignty vs political reality

UK constituencies

UK is divided into constituencies and voters choose one candidate from each of these. The candidate with the most votes wins (no need for majority)

Effects;

• Rewards large parties

• Produces 'manufactured majorities'

• Small parties unrepresented

• Stable, decisive executives

• Strong control of the legislature by the executive

Additional member system used in Scotland and Wales:

AMS = a mixed electoral system combining:

1. Constituency vote

2. Regional vote (proportional representation)

How it works:

• Constituency MSPs/MSs elected by FPTP

• Regional seats allocated using d'Hondt formula

• Regional seats 'top up' disproportionality from FPTP

Outcome becomes more proportional to votes cast overall

Effects of AMS:

• Majority governments rare and minority governments common

• Coalition/cooperation agreements encouraged

• Negotiation is built into governance

• Committees and legislatures have more influence

• Executive dominance does not translate

Why AMS for Scotland and Wales?

---> To prevent one-party domination and ensure broad representation

Scottish Parliament:

• Reserved-powers model (maximum autonomy)

• 129 Members (MSPs) elected by Additional Member System (73 FPTP/56 PR)

• Fixed-term four years

• Powerful Parliament with primary legislative authority over most domestic matters

Scotland Act provides:

• Section 1 – establishes the Parliament

• Sections 28–37 – legislative competence

• Schedules – list reserved matters

• Section 63A (in 2016 Act) – declares Holyrood ‘a permanent part’ of the UK

Scotland - the legislature

• Cannot relate to a reserved matter s.29(2)(b)

• Cannot modify Schedule 4 legislation

• Cannot be incompayible with human rights s.29(2)(d)

• Can only legislate for certain protected matters by means of a 2/3 majority s.31A

• Must comply with the common law principle of legality: AXA case

Welsh Parliament originally:

• No primary legislative power

• A corporate body (no separation between legislature/executive)

• Only executive devolution

Major developments:

2006 Act - granted limited primary powers

2017 Wales Act - moved Wales to a reserved powers model like Scotland

Senedd Cymru (Welsh Parliament) now:

• Legislature renamed 'Senedd Cymru/Welsh Parliament'

• 60 members elected by AMS

• Primary legislative power across devolved areas

• Some tax-varying powers

• Similar limits on competence to Scottish Parliament

• Doesn't have the power to alter criminal or private law

Northern Ireland Assembly:

Created by the Northern Ireland Act 1998 and has a power-sharing and consociationalism model reflecting the needs of a deeply divided society

The Assembly:

• Has 90 MLAs

• Elected by single transferable vote - 18 multi-member constituencies

• Has mandatory coalition government

Fragility of this model as it has experienced several collapses

Reserved and excepted matters and entrenched acts

Not competent to discriminate on the basis of 'religious belief or political opinion' s.6(2)

Each legislature is restricted by:

1. Subject-matter limits

Scotland & Wales: can legislate on anything noy expressly reserved

NI: transferred, reserved and excepted matters and distinguished

2. The 'purpose' test and 'effect' test

Legislation must relate to devolved matters in purpose and not have more than an incidental effect on reserved matters

3. Entrenched restrictions

All devolved acts must comply with the ECHR and EU law

The West Lothian Question:

Coined by Tam Dalyell MP (1977)

Core problem: why should MPS from Scotland, Wales and NI vote on England-only matters when English MPs cannot vote on devolved matters in those nations?

English votes for English laws (EVEL)

Introduced in 2015

• Standing order 83 J procedure

• Speaker certification of bills

• Procedure required 'england-only' legislation to be approved by a majority of English MPs

Criticised for:

• Complexity

• Creating 2 classes of MPs

• Partial solution

Competence limits across the UK:

All devolved legislatures are restricted by:

1. Reserved matters lists

Found in schedules to each Act e.g. the union, defence, foreign affairs, immigration

1. Human rights compliance

Must comply with the ECHR; incompatible acts are unlawful and not law

1. Procedural/institutional limits

Cannot legislate to modify protected provisions of the devolution statutes

Devolution issues:

Pre enactment:

• Law officer referral powers before Royal Assent:

• Scotland Act 1998, section 33

  • Attorney General for England and Wales

  • Lord Advocate of Scotland

• Government of Wales Act 2006, section 112

  • Counsel General for Wales

• Northern Ireland Act 1998, section 11

  • Attorney General for Northern Ireland

• Bills may be referred to the Supreme Court of the United Kingdom; entry into force may be delayed.

What counts as a ‘devolution issue’?

• Whether a provision is within legislative competence

• Whether a function is exercisable within devolved competence

• Whether a minister has acted lawfully

Key cross-UK interpretive duties:

1. Reading down obligations where broad interpretation would exceed competencies

2. 'pith and substance' doctrine: courts look at the true purpose of a law not incidental effects

3. 'relates to' test: if the provision's 'purpose and effect' relate to a reserved matter - outside competence

HR: Cadder v Her Majesty’s Advocate [2010] UKSC 43

Police interviews without solicitor present breached Article 6 of the ECHR - Lord advocate has no power to rely on such evidence

HR: Christian Institute v Lord Advocate [2016] UKSC 51

'named person' scheme information-sharing breached Article 8 rights - Inavlid, but remedy suspended under Scotland Act 1998, section 102

Recovery of Medical costs for Asbestos Diseases Bill - Reference by the Counsel General for Wales [2015] UKSC 3

Breach of right to property (ECHR Article 1 of Protocol 1) meant Bill exceeded competence

Early position: AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46

Insurance companies challenged the Damages (Asbestos-related conditions) Scotland Act 2009 which was enacted to ensure they could be held responsible to pay claims arising out of asbestos-related conditions

Supreme court held:

• Scottish Parliament is a self-standing democratically elected legislature

• But remains subordinate to the Parliament of the UK

AXA: Standard of review

Courts will NOT:

• Interfere with political or social policy choices

• Apply ordinary Wednesday unreasonableness tests

Courts will intervene if:

• Measure is 'truly irrational' e.g. discriminatory

• Fundamental common law rights are breached

• Competence limits in the devolution legislation are crossed

Reference of the UK withdrawal from the European Union (Legal Continuity) Scotland Bill [2018] UKSC 64

Scottish Parliament attempted to create its own regime for preserving EU law after Brexit by legislating a Scottish 'continuity law' post-EU exit. This would prevent UK Parliament from overriding EU-related devolved areas, Legal questions was the bill within devolved competence given?

Supreme Court held that:

• Several provisions exceeded competence

• Section 28(7) Scotland Act protects Westminster's 'unqualified' legislative authority

• Devolved institutions cannot impose conditions on the operation of Acts of Parliament

Legal continuity bill:

To 'relate to' reserved matters there must be 'more than a loose or consequential connection' [31-33]

What is the distinction between a modification and a reservation?

Modification = alters a rule laid down in the protected enactment, or is otherwise in conflict with its unqualified continuation in force.. In substance amended

Section 28 - the power of the Parliament of the UK to make laws for Scotland

Reference of the United Nations Convention on the Rights of the Child (Incorporation) Scotland Bill [2021] UKSC 42

Bill sought to:

• Fully incorporate UNCRC into Scottish law

• Require all public authorities to act compatibly

• Apply obligations to Acts of Parliament within devolved areas:

It thus would empower Scottish courts to strike down, reinterpret, or declare incompatible Scottish AND Westminster legislation applying in Scotland

Supreme court held:

• Provisions modified the 'protected provisions' in the Scotland Act

• Devolved legislatures cannot qualify, reinterpret, or control effects of Acts of Uk Parliament - attempted to modify power of UK Parliament to make laws

• Made 'the effect of Acts of Parliament conditional on decisions taken by other institutions'

 

Reference of the United Nations Convention on the Rights of the Child (Incorporation) Scotland Bill [2021] UKSC 42 Section 19,20 and 21

• section 19 would require legislation — including Acts of the UK Parliament that would be within Scottish devolved competence — to be ‘read and given effect in a way which is compatible’ with the UNCRC, ‘so far as it is possible to do so’

• section 20, would allow courts to ‘strike down declarators’ to be issued, stating that certain legislation — including UK legislation within devolved competence and enacted prior to section 20’s entry into force — ‘ceases to be law’ to the extent of its incompatibility with the UNCRC

• section 21, provided for the issuing of ‘incompatibility declarators’ in respect of UNCRC-incompatible legislation (including UK legislation within devolved competence) that receives Royal Assent on or after the day on which section 21 enters into force.

Reference by the Lord Advocate of the Scottish Independence Referrendum Bill [2022] UKSC 31

• Draft bill proposed 'Should Scotland be an independent country?'

• Highlighted the purpose of reservation was that ‘matters in which the UK as a whole has an interest should continue to be the responsibility of the UK Parliament at Westminster

• Bill relates to reserved matters therefore outside legislative competence

What the cases establish:

Westminster supremacy is legally entrenched: Section 28(7) Scotland Act

• Constitutional innovation by legislatures is limited

• Courts use strict statutory interpretation

• Devolution is NOT a federal constitution

Shared consequences:

----> cannot create new constitutional rights frameworks that affect Acts of Parliament

Cannot insulate devolved areas from Westminster override

Cannot legislate on matters that 'relate to' reserved fields

Brexit conflicts with devolved governments

• Each devolved government had a different vision of Brexit:

• Scottish - supported soft Brexit (single market + customs union)

• Welsh - favoured retention of free movement of goods, services and capital

• NI - no functioning executive; DUP held influence in Westminster coalition under May

• UK government - pursued hard Brexit under May and Johnson

• All 3 devolved legislatures refused to give consent for the EU Withdrawal Act 2018 and related legislation. Under Sewel, 'consent' would normally be expected. Despite this, Westminster legislated anyways demonstrating the legal supremacy of Parliament and the political fragility of Sewel.

Internal Market Act 2020

• EU law previously regulated trade between the UK's constituent parts via the single market and free movement rules.

After Brexit:

• The UK needed replacement rules for internal trade

• The UK government passed the UK Internal Market Act 2020

• This Act introduced mutual recognition and non-discrimination requirements that prevent devolved Parliaments from using their powers to create internal barriers to trade

NI and the protocol:

NI is uniquely affected:

• The peace process relies on an open border with Ireland

• The protocol keeps NI aligned with EU goods rules

• This necessarily creates a regulatory border in the Irish sea

• This arrangement continues to be politically tense and constitutionally fragile

Steps of application to problem questions

1. Identify the relevant statute

2. Identify potentially relevant reserved matters

3. Apply the 'relates to' test

4. Purpose of the bill

5. Effect of the bill

6. Other competence tests

7. Arguments for v against competence

8. Conclusion and risk evaluation