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1

What is devolution?

Devolution involves the transferring of powers currently exercised centrally, to regional bodies, but where the body originally exercising them retains the ultimate power to make those, and other, decisions.

2

How did N Burrow define devolution?

‘Devolution essentially means the transfer and subsequent sharing of powers between institutions of government within a limited framework set out in legislation.’

3

How did V Bogdanor define devolution?

‘Devolution involves the transfer of powers from a superior to an inferior political authority. More precisely, devolution may be defined as consisting of three elements: the transfer to a subordinate elected body, on a geographical basis, of functions at present exercised by Ministers and Parliament. These functions may be either legislative, the power to make laws, or executive, the power to make secondary laws – statutory instruments, orders and the like – within a primary legal framework still determined at Westminster.’

4

What is the rationale for the devolution of power?

The principle of subsidiarity is often relied on as justification for devolving power - Lord Bingham said - 'Decisions affecting the life and activities of the citizen should generally speaking be made at the lowest level of government consistent with economy, convenience and the rational conduct of public affairs. This is plainly akin to the European principle of subsidiarity...I shall call this "the devolutionary principle”

5

What potential issue did Lord Bingham identify in relation to devolution?

He said - 'It would be obviously absurd if the central government were to concern itself with...local refuse collection and equally absurd...if foreign policy and defence were not conducted by the central government. So the problem is where to draw the line...’

6

What is the history of relations between England and Wales and Scotland?

Wales was ruled by England since the 13th century via Statute of Wales 1284.
There is a history of battles with Scotland, who gained independence from England in 1314 at battle of Bannockburn.

7

What was the significance of the Treaties of Union 1707 in relation to English-Scottish relations?

It established full political and economic union, making the countries one and setting up the UK Parliament as the supreme legislative body. Declared this arrangement - in which Scotland kept its own separate legal, education and religious system - to be unchangeable.

8

How did Parliament come to devolve significant powers to Scotland?

1. There was a growing perception of lack of legitimacy of Westminster to rule Scotland in the late 80s and early 90s
2. Scottish MPs, MEPs, Labour representatives, Lib Dems, Trade Unions and other small parties produced a blueprint proposing Scottish Parliament with substantive legislative powers
3. Labour victory in 1997 - on manifesto promise to implement devolution
4. Referendum on whether there should be a Scottish Parliament put to Scottish people in September 1997. 74.3% in favour
5. Put into place by Scotland Act 1998

9

What level of pressure is there for devolution or independence in Wales?

Historically, pressure in Wales for devolution or independence is much less than in Scotland. 1997 Welsh referendum on devolution only passed with 50.3% - a 0.3% majority!

10

What is the history of devolved power in Northern Ireland?

1. A Devolved Parliament and executive were established in 1921, retaining supremacy of UK Parliament and reserving some subjects for the UK Parliament alone (e.g. defence).
2. Religious divides/conflicts within government led to civil unrest and resulted in re-imposition of direct rule by the UK in 1972.
3. The 1998 Good Friday Agreement created a ceasefire and restored devolved rule. Put into place a system of power sharing in which the largest party nominates a First Minister, and the second largest party a Deputy First Minister.
4. Tensions continued and devolution was suspended several times, lastly in 2002.
5. Reinstated in 2006, although with continuing problems

11

What are the shared or common characteristics of the devolved systems (Scotland and Northern Ireland)?

1. Unicameralism (single legislative chamber)
2. Elected through proportional representation (not first past the post like the UK Parliament);
3. Formal/legal subordination to Westminster who retains right to legislate directly
4. System of 'constitutional review' - to ensure that devolved bodies, including the legislatures, are acting within the powers granted to them by Westminster

12

What demonstrates the legal subordination of Scotland to Westminster?

s.28(7) Scotland Act 1998: ‘This section [which provides that the Scottish Parliament has power to make legislation] does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.’

13

What is the significance of the Sewel Convention in regards to the maintained right of Westminster to legislate in Scotland?

The Sewel convention holds that UK Parliament will not normally legislate in devolved areas without consent. This I s now 'recognised' in the Scotland Act s28(8) - as inserted by Scotland Act 2016, s2.

14

What demonstrates a constitutional review of the powers exercised by Scottish Parliament?

s.29(1) Scotland Act: ‘An Act of the [Scottish Parliament] is not law so far as any provision of the Act is outside the legislative competence of the [Scottish Parliament].’

15

How are devolved powers given to Scottish Parliament limited?

Powers of Scottish Parliament are defined negatively - powers which are not to be transferred ("reserved powers") are set out in the Scotland Act (schedule 5)
Anything not specifically reserved is devolved.

16

What examples are there of reserved powers not transferred or devolved to Scotland?

1. UK constitutional issues including the monarchy, the UK Parliament and the registration and funding of political parties and the civil service including the Scottish civil service
2. Foreign and defence policy, including immigration and citizenship
3. Fiscal, economic and monetary system
4. Common markets for UK goods and services
5. Employment and social security
6. Consumer protection, intellectual property, competition law
7. Transport safety and regulation
8. Energy including the ownership and exploration of oil and gas
9. Miscellaneous matters, including abortion, postal services, equal opportunities and broadcasting regulation.

17

What examples are there of powers devolved to Scotland?

1. All areas of education
2. Local government
3. Land development, environmental regulation and planning
4. Many aspects of transport policy
5. The Scottish NHS
6. Private and criminal law (except for laws on drugs), including judicial review (save that the SP is bound by both EU and the ECHR
7. Agriculture, forestry and fisheries
8. Social work and housing
9. Sports, arts and culture.

18

What legal limitation are there on the powers of the Scottish Parliament according to s. 29?

The Scottish Parliament may not legislate incompatibly with:
1. EU law
2. The European Convention on Human Rights (as defined in the HRA)
3. The Scotland Act itself (with a few minor exceptions)

19

What powers do Scottish Parliament have to repeal primary legislation?

The Scottish Parliament has power to repeal (primary) legislation of the Westminster Parliament in the devolved areas.

20

Can alterations be made to the devolved areas?

The devolved areas may be altered by Order in Council (s.30(2)) but the Order must be approved by both the Scottish and UK Parliaments.

21

How were the devolved powers to Scotland recently enhanced?

Following the 2014 Scottish Independence Referendum the Westminster Government committed to the enhancement of devolved powers in Scotland. These were quickly brought into force by Scotland Act 2016, which implemented the Smith Commission's recommendations and transferred further powers to Scotland.

22

What were the constitutionally controversial measures in the Scotland Act 2016?

The two most constitutionally controversial measures in the Act are those declaring 'The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom's constitutional arrangements' and that it is not to be abolished except after a Scottish referendum (SA, 2016, s1, and the provision 'recognising' the Sewel convention (s2, SA 2016).

23

What were the controversial legal implications of the Scotland Act 2016?

1. Controversy over whether Parliament can legally bind its successors
2. Does legal recognition of a convention changes anything re enforceability?