Study Notes on Chapter 11: Devolution

Chapter 11: Devolution

Introduction

The question raised at the start of the chapter - "What country do you live in?" - highlights the complexities of identity and governance within the United Kingdom (UK). Unlike the clearly defined sovereign states in the world such as the United States of America, the UK is made up of four constituent parts: England, Scotland, Wales, and Northern Ireland, each with different historical and legal frameworks relative to governance and identity.

From an international law standpoint, the UK is recognized as a sovereign state; however, the internal dynamics of power, governance, and identity within the framework of the UK Constitution are of major focus for Public Law practitioners. This chapter will address the following key themes:

1. Mapping the devolution of power to Wales, Scotland, and Northern Ireland.
2. Understanding the consequences of devolution settlements for England.
3. Recognizing devolution as a continuous process, rather than a singular event.
4. Noting the significant asymmetry in the UK's devolution arrangements.

11.1 The Structure of the UK

11.1.1 Terminology

Understanding the terminology used when referring to the UK is crucial. Each of the four units can be referred to as a "nation," thus establishing a common vocabulary:

• Great Britain: A geographical entity that includes the nations of England, Wales, and Scotland.
• United Kingdom (UK): A sovereign state that encompasses Great Britain and Northern Ireland.
• British Isles: A wider geographical concept not officially regarded as a state. It includes the Isle of Man and the Channel Islands, which are self-governing dependencies of the Crown and are part of UK foreign policy without being part of the country itself.

11.1.2 Wales

Wales was incorporated into England through the military conquests of the 13th century, retaining initial autonomy in law and language, before being progressively assimilated. Key legislative milestones include:

• Act of Union 1536: Formalized English sovereignty over Wales, setting a single jurisdiction.
• Following a lack of public support for the Wales Act 1978 (which proposed devolution), the evolving nature of Welsh governance led to the establishment of a Secretary of State for Wales in 1964 and eventually the Wales Office with specific responsibilities regarding Welsh affairs.

A significant development in recent years is the gradual acceptance of devolution processes within Wales, which culminated in referendums leading to wider governance powers.

11.1.3 Scotland

Scots law developed independently, originating from principles of Roman law, and upon the crowns’ unification under James I in 1603, both nations maintained legal and educational distinctiveness. Key legislative acts include:

• Act of Union 1706/1707: Formed Great Britain, granting Scotland distinct rights regarding legal and administrative systems.
• Initial devolution referendums were unsuccessful until the 1997 referendum, which confirmed the establishment of the Scottish Parliament with a 74% majority.

The Parliament was granted significant powers including tax-varying competencies through successive legislative acts.

11.1.4 Northern Ireland

Disparate Anglo-Irish relationships have historically influenced governance. Key milestones include:

• Act of Union 1800: Led to a fragmented relationship evidenced by separate laws and community tensions, compounded by sectarian divides.
• Good Friday Agreement 1998: Established a devolved Assembly with powers shared amongst various parties representing Unionists and Nationalists.

This agreement reflects the delicate balance required to manage Northern Ireland's complex identity, culture, and governance arrangements.

11.2 Federalism

According to Turpin and Tomkins, the UK features a union constitution, distinct from both unitary and federal systems. Federalism typically divides power without unilateral changes to that power structure, backed by a codified constitution, which the UK lacks.

Historically, while UK governance has been unitary, the recognition of Scotland, Wales, and Northern Ireland's distinctiveness becomes pivotal in constitutional categorization.

11.2.1 Devolution

Devolution in the UK has emerged as a responsive mechanism rather than a systematic approach. While it offers various advantages, including closer governance to local populations, it can also elevate jurisdictional challenges and inequalities among the nations.

11.2.2 Asymmetry

The devolution arrangement in the UK is notably asymmetric, with distinct competencies and powers that vary across its nations, undermining uniformity within governance. This asymmetry is prevalent in power distributions and legislative competences.

11.2.3 Coordination in a Union Constitution

Devolved governance leads to potential incoherencies, managed to some extent through the non-legally binding Memorandum of Understanding between the devolved administrations and the UK Government. Regular oversight meetings, such as the Joint Ministerial Committee, enhance coordination but remain politically tenuous.

11.3 Wales

Wales’ devolution initially lagged behind Scotland and Northern Ireland due to low public support. However, Welsh cultural identity has remained resilient, boosting interest in devolution, culminating in:

• 1997 Reference to initiate the basic legislative powers, albeit with limited competence initially.
• Subsequent developments underscored the theme of gradual devolution leading to a clearer legislative authority post-2011.

11.4 The Welsh Parliament

11.4.1 Senedd Cymru

The Welsh Parliament, shaped by the Government of Wales Acts, evolved from a permissive assembly to one with significant legislative powers under current arrangements. The fundamental structure includes 60 Members elected through an additional member system blended with proportional representation.

11.4.2 Powers

Initially limited to delegated legislative authority, subsequent acts have gradually expanded the Senedd’s powers, transitioning from a conferred powers model to a reserved matters model, enabling more robust legislative independence.

11.5 Welsh Government

Established formally in 2006, this authority operates independently of Westminster. It is accountable to the Senedd, headed by a First Minister, supported by a council of ministers. Legislative innovations, such as the Human Transplantation (Wales) Act 2013, demonstrate the capacity for progressive and distinct policy-making under devolution.

11.6 Scotland

Scottish devolution efforts have persisted and evolved post-1979 referendum failures, significantly driven by the Scottish National Party's (SNP) resurgence, culminating in the 1997 referendum that solidified a devolved Parliament in Scotland with tax-varying powers.

11.7 The Scottish Parliament

Comprised of 129 Members, the Scottish Parliament utilizes an additional member system aimed at enhancing representation through a combined constituency and regional list voting process, granting extensive legislative powers to pass laws that can adjust or repeal UK legislation under specified conditions.

11.8 The Scottish Government

The Scottish Government oversees legislative enactments across devolved sectors with a commitment to social equity in public policy areas, particularly regarding health and social care.

11.9 Northern Ireland

Northern Ireland’s political landscape remains influenced by a tumultuous historical backdrop leading to the power-sharing framework established by the Good Friday Agreement. This uniquely structured Assembly strives to maintain a delicate balance between the competing interests of Unionists and Nationalists.

11.10 Northern Ireland Assembly

The Assembly operates under principles established in the Northern Ireland Act 1998, which details its structure and legislative powers while accommodating dual-national identities and complexities stemming from the history of the conflict in the region.

11.11 Northern Ireland Executive

The Executive’s power-sharing model mandates cooperation between Unionists and Nationalists and distinctly limits unilateral policymaking to align with stability and governance in a historically divided society.

11.12 Brexit and Devolution

The Brexit referendum unveiled discord amongst the nations, with England and Wales supporting Leave while Northern Ireland and Scotland leaned towards Remain. This divergence has raised significant debates about the future of devolution powers as post-Brexit realities unfold, including the Northern Ireland Protocol.

11.13 England

While Scotland, Wales, and Northern Ireland possess devolved powers, England governs under a centralized system, raising critical discussions around the West Lothian Question and considerations for a more equitable legislative framework affecting different regions of the UK.