Comprehensive Notes on UK Devolution

Introduction to Devolution

Devolution involves the division of governance among Wales, Scotland, Northern Ireland, and English regions.

The Idea of Devolution

Before 1997, the UK had a single government and parliament. Today, devolution created the Northern Ireland Assembly and Executive, the Senedd Cymru and Welsh Government, and the Scottish Parliament and Scottish Government.

Devolution recognises the UK's complexity by granting autonomy to its parts. Unlike federalism, it preserves central legislature powers, as noted in the Continuity Bill Reference [2018] UKSC 64.

The Devolution Process

Started by New Labour in 1997. It is:

  • Bilateral: Agreements between central government and devolved administrations.

  • Asymmetrical, but convergent: Varying devolved powers, trending toward convergence.

  • Created through Acts of Parliament: Legally established via statutes.

  • Endorsed by referendums: Public approval via referendums.

  • Dynamic / evolutionary process: Adapts over time.

Original statutes: Government of Wales Act 1998, Scotland Act 1998, and Northern Ireland Act 1998. Current statutes: Government of Wales Act 2006, Scotland Act 1998, and Northern Ireland Act 1998.

Why Devolve Power?

Reasons include:

  • Growing demands for autonomy.

  • Recognition of multiple national identities.

  • Preservation of the Union.

  • Promotion of democracy.

  • Preservation of parliamentary sovereignty.

In Northern Ireland, driven by:

  • Prior legislative devolution (1921-72).

  • Ending civil conflict ('The Troubles').

  • Key pillar of the peace process, Strand One of the Belfast / Good Friday Agreement 1998.

Why Not Devolve Legislative Power to England?

Reasons against:

  • Its size.

  • Differing regional identities.

  • Complex relationship between English and UK Parliaments.

  • Lack of support for an English government, parliament, and regional government (e.g., failed NE Assembly referendum 2004).

Key Features of Devolution in Scotland

Scotland has:

  • A Scottish Parliament with 129 members ('MSPs').

  • A Scottish Government.

  • The most powerful and stable settlement.

  • Expanded powers via Scotland Acts of 2012 & 2016.

  • Tax-raising and borrowing powers.

  • Powers over some social security benefits.

Key Features of Devolution in Wales

Wales has:

  • A Welsh Parliament / Senedd Cymru with 60 members ('MSs'), rising to 96 with PR voting from 2026 per the Senedd Cymru (Members and Elections) Act.

  • A Welsh Government.

  • A history of change: Government of Wales Act 2006, Wales Act 2014, and Wales Act 2017.

  • The most limited devolution settlement.

  • Some tax-raising and borrowing powers.

  • Remains part of the 'England and Wales' legal system.

Key Features of Devolution in Northern Ireland

Northern Ireland has:

  • A Northern Ireland Assembly with 90 members ('MLAs').

  • A Northern Ireland Executive.

  • A power-sharing / consociational executive (NIA 1998, s.16A).

  • A process for unification with Ireland (NIA 1998, s.1 & Sch 1).

  • Significant suspension periods (2000; 2002-07; 2017-20; 2022-24).

Key Features of Devolution in England

England has:

  • No legislative devolution (yet!).

  • The UK Government and Westminster Parliament act as the 'de facto' English government and parliament.

  • Regional (administrative) devolution in patchwork form:

    • London Mayor and Assembly

    • Combined local authorities / 'Metro Mayors'

    • Established under the Local Democracy, Economic Development and Construction Act 2009 and Cities and Local Government Devolution Act 2016 (English Devolution Bill)

  • 'English Votes for English Laws' (EVEL) (2015-2017)

Powers

Key terms:

  • Legislative competences (powers): scope of legal authority granted to a devolved body.

  • Devolved vs. Reserved competences: powers granted to devolved bodies vs. those retained by the central government.

Powers are determined by the Act in question, Imperial Tobacco v Lord Advocate [2012] UKSC 61. The UK Parliament can legislate on any matter (SA 1998 s.28(7); NIA 1998 s.5(6); GOWA 2006 s.107(5)).

Commonality Across the Three Settlements

  • Devolved: Health, Education, Housing, Transport, Local government, Economic development, Agriculture, forestry, fisheries, Environment and planning

  • Reserved: Constitution, Foreign affairs, Defence, Fiscal and monetary policy, International trade, Competition, Intellectual property

The Scotland Act 1998, s.28(1) states the Parliament may make laws, known as Acts of the Scottish Parliament. See also GOWA 2006, s.107; NIA 1998, s.5.

Restrictions

The Scotland Act 1998, s.29 states Acts of the Scottish Parliament are ‘not law’ if they:

  • Concern matters outside Scotland

  • Relate to reserved matters

  • Relate to ‘protected enactments’

  • Are incompatible with ECHR rights

See also: GOWA 2006, s.108A; NIA 1998, s.6

Determining if a Provision Relates to a Reserved Matter

The Scotland Act 1998, s.29 (3) states whether a provision relates to a reserved matter is determined by its purpose and effect.

  • Requires more than a 'loose or consequential connection' (Martin v Most [2010] UKSC 10).

  • Does not require devolved legislation to change law on reserved matters.

Managing Disputes

  • The Sewel Convention involves 'legislative consent motions' (LCMs).

  • It is a key constraint on parliamentary sovereignty.

  • Statutory basis in Scotland Act 1998, s.28(8); Government of Wales Act 2006, s.107(6).

  • It is non-justiciable (Miller I [2017] UKSC 5).

'…the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters, except with the agreement of the devolved legislature' (MoU between UK and devolved governments).

Other mechanisms:

  • Informal political resolution.

  • Formal intergovernmental mechanisms (Intergovernmental Relations Review 2021).

  • Referral to UKSC: SA 1998, s.33; NIA 1998, s.11; GOWA 2006, s.112.

  • UK Government 'veto': SA 1998 s.35; NIA 1998 s.14; GOWA 2006 s.114.

Examples of Disputes

  • Continuity Bill Reference [2018] UKSC 64: A Scottish Bill regulating EU law effects in devolved areas post-Brexit did not ‘relate to’ the reserved matter of ‘international relations’.

  • Scottish Independence Referendum Bill Reference [2022] UKSC 31: A Scottish Bill for an advisory referendum on Scottish independence ‘related to’ the reserved matters of the Union and the UK Parliament.

Constitutional Protections

  1. Sewel Convention

  2. Permanence clauses:

    • Scotland Act 1998, s.63A (as amended by Scotland Act 2016):
      (1) The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom's constitutional arrangements - signifies the commitment from Westminster to Edinburgh

    (3) Only through a Scottish referendum can Scotland be made independent od the government be abolished

    • See also Government of Wales Act 2006, Pt A1 (as amended by Wales Act 2017)

Devolution Challenges

  • Territory-specific challenges:

    • Northern Ireland Protocol

    • Referendum deadlock in Scotland

    • Jagged edge of justice in Wales

The Democratic ‘Deficit’

  • Multiple facets:

    • Electoral divergences between the UK’s parts

    • English dominance

    • Non-English representation at the UK level

  • Key justification for devolution

  • Exacerbated by Brexit vote

  • Reason for independence support (Griffiths, 2022)

Parliamentary Sovereignty

  • UK Parliament has right to ‘make or unmake any law’ (Dicey)

  • An ‘article of faith’ among Westminster’s political class (Loughlin and Tierney, 2018)

  • Sovereignty paradox: legislative supremacy vs. devolved autonomy?

  • ‘Schrödinger’s devolution’ (Sandford and Gormley-Heenan, 2020)

EU Withdrawal / ‘Brexit’

  • Who sets UK regulatory standards post-Brexit?

  • Devolution shaped by UK’s EU membership

  • Devolution interacted with EU law (e.g., agriculture, fisheries, environment, food standards).

  • Devolved legislatures’ Acts were ‘not law’ if incompatible with EU law.

  • EU rules provided common rules to devolution.

  • A ‘unitary state’ entered the EU; a devolved state emerged.

UK Internal Market Act 2020

  • Introduces ‘market access’ principles: Mutual recognition & Non-discrimination

  • Empowers UKG to spend in devolved areas ('UK Shared Prosperity Fund').

  • Enacted without devolved institutions’ consent.

  • Signals ‘death of devolution’ (Morgan & Wyn Jones, 2023).

Sewel Breakdown

  • 1999-2024: devolved legislative consent withheld re 28 UK Acts.

  • 19 consent refusals occurred between 2019-24 (Institute for Government 2024).

'The practice of proceeding with UK-wide legislation notwithstanding the withholding of devolved consent is becoming normal…and there are serious differences of interpretation regarding when consent is or is not required.' (UK Constitution Monitoring Group, 2023)

The Devolved / Reserved Boundary

Is it dissolving?

  • SA 1998, s.28(7): ‘This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland’

  • Parliamentary sovereignty limits devolved law-making

  • UNCRC Bill Reference [2021] UKSC 42

  • ‘Political consequences’ may place legislation outside competence

  • Scottish Independence Referendum Bill Reference [2022] UKSC 31

Northern Ireland Protocol

  • Protocol on Ireland / Northern Ireland as part of UK-EU Withdrawal Agreement

  • UKG choice: 1) ‘Softer’ UK-wide Brexit, OR 2) Differentiated solution for NI

The Protocol establishes NI’s alignment with (some) EU rules, creating a border in the Irish Sea.

  • Conflict managed via ‘grace periods’ and non-enforcement.

  • Windsor Framework (2023):

    • Red v green lanes on goods

    • ‘Stormont Brake’

  • January 2024: agreement to restore NI power-sharing

  • The Protocol remains contested

Scotland: Referendum Deadlock

  • Context:

    • SNP Government seeks a referendum on Scottish independence

    • Follows 2021 manifesto commitment

    • UKG refusing

    • Absence of statutory provision (e.g. NIA 1998, s.1 & Sch 1)

    • Compare 2012 Edinburgh Agreement

  • UKSC: Scottish Parliament lacks power for referendum (Scottish Independence Referendum Bill Reference [2022] UKSC 31)

  • An involuntary union?

  • SNP support fallen, but independence support consistent

  • Who has final say on a referendum? Why?

Wales: The ‘Jagged Edge’ of Justice

'[A] policy space … of intersecting competences and responsibilities shared between two governments with different political priorities and accountable through different electoral mandates.' Jones and Wyn Jones (2022)

  • Welsh Parliament: Health, Education, Housing, Social services

  • UK Parliament: Criminal law, Courts, Police, Probation

The Commission on Justice in Wales (Thomas Commission) 2017-19 found justice arrangements ‘unduly complex’ and recommended full devolution of justice and policing, not accepted by the UKG.

Future Reform

The Brown Report (2022):

  • ‘Assembly of the Nations and Regions’

    • Power to reject legislation affecting constitutional statutes

    • Subject to UKSC determination

  • Reform Sewel Convention

    • Make it ‘legally binding’

    • Consent required ‘not normally’ but ‘in all circumstances’
      Some issues:

  • A form of recentralisation?

  • Ambiguity re ‘constitutional’ legislation

  • More power to the Supreme Court?

  • Cautious Labour Party Future reform