The multifaceted constitutional dynamics of U.K. devolution

International Journal of Constitutional Law

Volumn 9, Issue 1, 2011, Pages 251-273

  Leyland, Peter ^a  

^a LONDON METROPOLITAN UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 80053550940     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mor021     Document Type: Article

References (137)

1. For an overview of U.K. devolution, see Vernon Bogdanor, Devolution in the United Kingdom (1999).
2. rd ed. 2009).
3. Public Law in a Multi-Layered Constitution 2-10 (Nicholas Bamforth & Peter Leyland eds., 2003).
4. See The Dynamics of Devolution: The State of the Nations 2005 1 (Alan Trench ed., 2005).
5. See below.
6. Alan Page, A Parliament that is Different?, in Devolution, Law Making and the Constitution 12 (Robert Hazell & Richard Rawlings eds., 2005).
7. The Brazilian and Nigerian Constitutions are good examples of federal constitutions based on the U.S. Constitution.
8. In the U.S., the states predated the introduction of the Constitution.
9. Germany has a form of cooperative federalism that also operates on a symmetrical basis; however, this is where national and state governments (Länder) act as partners in pursuing the interests of the entire nation. The upper house of the German Parliament, the Bundesrat, comprising representatives from the Länder, approves legislation on behalf of the states. The Länder are then responsible for the implementation of these measures.
10. See Noreen Burrows, Devolution 3 (2000).
11. See the Tenth Amendment, U.S. Constitution.
12. See Scotland Act 1998, section 31 and 32 and NIA 1998 ss. 6-10.
13. See Rod Hague & Martin Harrop, Comparative Government and Politics: An Introduction 228 (2004).
14. See Stephen Tierney, Constitutional Law and National Pluralism 9 (2004).
15. Such constitutions have been adapted to accommodate tensions between linguistic, ethnic, and religious groups as in India, Malaysia, Canada. South Africa provides an example of a relatively recent constitution, which is federal in structure.
16. See ch. 9 in Heinz Klug, The Constitution of South Africa: A Contextual Analysis (2010): "Co-operative Government Regionalism and Local Government".
17. Richard Simeon, Considerations of the Design of Federations: The South African Constitution in Comparative Context, Working Paper 1998 (2), 1998 IIGR, Queen's University.
18. A. V. Dicey recognized the authority of the courts as interpreters of the constitution and as one of the characteristics of federalism.
19. See A.V. Dicey, An Introduction to the Study of the Law of the Constitution 175 (10th ed. 1959).
20. See Graham Gee, Devolution and the Courts, in Devolution, Law Making and the Constitution 258 (Robert Hazell & Richard Rawlings eds., 2005).
21. The Department of Constitutional Affairs (now renamed the Ministry of Justice) stated that: "The Concordats are intended to promote constructive co-operation and communication. They set out a working framework within which Ministers and officials may continue and develop relationships between the administrations. The primary aim is to ensure that if either is planning action impinging on the responsibilities of the other, it gives adequate forewarning.".
22. Richard Rawlings, Concordats of the Constitution, 116 L.Q. Rev. 258 (2000).
23. See also Martin Laffin, Alys Thomas, & Adrian Webb, Intergovernmental Relations after Devolution: The National Assembly for Wales, 71 Pol. Q. 223-245 (2000).
24. Richard Rawlings, The Shock of the New: Devolution in the United Kingdom, in Aufgabenverteilung und Finanzregimes in Verhältnis zwischen dem Zentralstaat and seinen Unterreinheiten 83 (E. Riedel ed., 2001).
25. The Northern Ireland Civil Service is separate from the service in the rest of the U.K. and, as such, it remains an exception to the notion of a unified civil service.
26. Peter Leyland, Inter-governmental Relations Post-Devolution in the UK: Coordination, Cooperation and Concordats, in Regional Councils and Devolved Forms of Government 155-179, 165 (E. Conde, L. Pegoraro, & A. Rinella eds., 2006).
27. See Mark Tushnet, The Constitution of the United States: A Contextual Analysis 160 (2009).
28. See Daniel Elazar, Federalism, in International Encyclopedia of the Social Sciences 356-361 (1968).
29. The Liberal Democrat Manifesto for the 2010 general election, at p. 92, refers to addressing "the status of England within a federal Britain, through the Constitutional Convention set up to draft a written constitution for the UK as a whole." No other party proposes any form of federal constitution.
30. Your Scotland, Your Voice: A National Conversation, Scottish Government, November 2009.
31. Scotland Act 1998, s. 6. The Scotland Act is herein after referred to as the SA. There is additional explanation of the member system of election in the section on Wales.
32. SA s. 2; an election can be called prematurely in certain circumstances.
33. See SA s. 47.
34. See Scotland Act 1998, S. 29 and Schedule 4. This includes: education, law, courts, prisons, judicial appointments, economic development, agriculture, fisheries, local government, the environment, housing, passenger and road transport, forestry, and the arts.
35. Prior to devolution the secretary of state for Scotland was the cabinet minister with executive responsibility for Scotland.
36. See Scotland Act 1998 section 29(2)(b).
37. An impressive feature in Scotland and Wales is the proportion of women in the Scottish Parliament and the Welsh Assembly.
38. These powers have not so far been used.
39. For a robust defense of the Barnett formula in preference to a needs-based formula, see Arthur Midwinter, Territorial Resource Allocation in the UK: A Rejoinder on Needs Assessment, 36 Regional Stud. 563-567 (2002).
40. See Scotland Act 1998, Part IV ss. 73-79.
41. Peter Leyland, 'Fiscal Federalism' and Reforming the Financial Parameters of Devolution: Italy and the UK compared, Percorsi Costituzionale 237-247, 239 (2009).
42. In its original form, for every £85 on English services, Scotland received £10, Wales £5, and Northern Ireland £2.75.
43. See House of Commons Research Paper 98/8: The Barnett Formula, January 1998.
44. For example, at the time when devolution was introduced in 1998 for every £100 of spending per head in England, £132 was spent in Scotland.
45. Neil Kay, The Scottish Parliament and the Barnett Formula, 24 Fraser of Allander Inst. Q. Econ. Comment. 22-48 (1998).
46. David Williams, Is time running out for the Barnett Formula?, Public Finance, July 23, 2009.
47. Serving Scotland Better: Scotland and the United Kingdom in the 21st Century, Final Report-June 2009, Recommendation 3.1-3.7. In the 2010 general election only the Labour Party specifically mentioned the Calman approach to revising the financing of devolution.
48. See A Future Fair to All, Labour Party Manifesto, 2010, 9:6.
49. Elect a Champion The Scottish National Party Manifesto 2010 advocates, on p. 1, "fiscal autonomy for Scotland." An Invitation to Join the Government of Britain, Conservative Party Manifesto, 2010, p. 83.
50. See Margaret Arnott & Jenny Ozga, Nationalism, governance and policy-making in Scotland: The Scottish National Party in Power, 30 Pub. Money & Mgmt. 91-96, 94 (2010).
51. th ed. 2007).
52. For a compelling study of the parameters of Welsh devolution, see Richard Rawlings, Delineating Wales: Constitutional, Legal and Administrative Aspects of National Devolution (2003).
53. The margin in favor of Welsh devolution in the referendum was less than 0.2 percent.
54. Richard Rawlings, Law Making in a Virtual Parliament: the Welsh Experience, in Devolution, Law Making and the Constitution (Robert Hazell & Richard Rawlings eds., 2005).
55. GWA 1998 ss. 64-68. These powers might be compared to those available to local authorities.
56. See the Richards Commission.
57. Government of Wales Act 2006, s. 93.
58. GWA 2006 s. 94. Orders in Council are usually secondary legislation issued under powers in a parent act, and they are often used for transferring powers and responsibilities.
59. See Better Governance for Wales, Cm. 6582, 2005.
60. Whereas English and Welsh legislation were often combined the introduction of Assembly Measures with a different procedure means that the Westminster Parliament now passes legislation which only applies to England. This trend will be accentuated as the Welsh Assembly acquires its own law making powers.
61. See Richard Rawlings, Hastening Slowly: The Next Phase of Welsh Devolution, Pub. L. 824-852, 841 (2005).
62. GWA 2006 s. 104 and s. 105.
63. See http://www.bbc.co.uk/news/uk-wales-politics-12648649.
64. GWA 1998, ss. 3-7.
65. An obvious reason why the Welsh Assembly has fewer members than the Scottish Parliament is because Wales has a smaller population.
66. GWA s. 22(2) and schedule 2.
67. The principal matters devolved are: agriculture, forestry, fisheries and food, environmental and cultural matters, economic and industrial development, education and training, health, housing, local government, social services, sport and tourism, town and country planning, transport, water and flood defenses, and the Welsh language.
68. For example, the Welsh Health authorities and the Welsh Tourist Board.
69. Brigid Hadfield, The United Kingdom as a Territorial State, in The British Constitution in the Twentieth Century 599-604 (Vernon Bogdanor ed., 2003).
70. See, for example, Northern Ireland Act s. 16(3), 17(5).
71. Colm Campbell, Fionnuala Ní Aoláin, & Colin Harvey, The Frontiers of Legal Analysis: Reframing the Transition in Northern Ireland, 66 Mod. L. Rev. 317-345, 331 (2003).
72. The single-transferable-vote method works as follows: Quota = total votes cast in a constituency, divided by the number of seats, plus one. Any candidate reaching the quota is elected and surplus votes from any candidates exceeding the quota are redistributed to other candidates until all the seats are filled.
73. See Northern Ireland (St. Andrews Agreement) Act 2006, s. 20.
74. See Northern Ireland Act 1998, ss. 18 and 19.
75. In order to achieve a proportional weighting between the two communities all elected members regardless of party must be designated nationalists, unionists, or other. For parallel consent, there must be consent of more than 50 percent in each of these designated categories. Alternatively there can be a "weighted majority" of more than 60 percent, which must include 40 percent of designated unionists and 40 percent of designated nationalists.
76. It is worth noting that in the case of Northern Ireland the secretary of state for Northern Ireland (a cabinet minister at Westminster) has taken over responsibility for the officials that run the executive at times when the devolved institutions have been suspended.
77. Northern Ireland Act 1998 s. 1.
78. The British-Irish Council has been established as a body to consider broader mutual interests with the U.K., and it consists of representatives from the Scottish Parliament, Welsh Assembly, Channel Isles, and Isle of Mann.
79. These bodies comprise: Waterways Ireland; the Food Safety Promotion Board; Inter Trade Ireland; The Special EU Programmes Body; The Foyle, Carlingford and Irish Lights Commission; and The Irish Language Body.
80. See Vernon Bogdanor, The British-Irish Council and Devolution, 34 Gov't & Opposition 287-299 (1999).
81. See Peter Leyland, Il British-Irish Council: governance multilivello e cooperazione intergovernativa dopo la devolution, in Isole nel Diritto Pubblico ed Europeo 106ff (T. Frosini ed., 2007).
82. Northern Ireland Act 1998, Part VII.
83. Police and justice powers were devolved to a Northern Ireland Department of Justice on April 12, 2010, after prolonged negotiations, and the new department is overseen by a Justice Committee of the Northern Ireland Assembly.
84. England (51.4), Scotland (5.1), Wales (2.9), Northern Ireland (1.75), Office of National Statistics 2008.
85. The significance of Westminster legislation over devolved matters requires Westminster's Scottish MPs to continue to be the guardians of Scottish interests.
86. See Alan Page & Andrea Batey, Scotland's Other Parliament: Westminster Legislation about Devolved Matters in Scotland since Devolution, Pub. L. 501-524, 522 (2002).
87. See e.g., Campaign for the English Regions: http://www.cfer.org.uk/home.htm.
88. Giving the People a Voice: A Campaign for Yorkshire's White Paper (September 2001).
89. Campaign for an English Parliament.
90. For fuller discussion of these issues see The English Question (Robert Hazell ed., 2006).
91. The Regional Development Act 1998 introduced a new policy for economic regeneration by dividing England into nine regions.
92. Meg Russell & Guy Lodge, The Government of England by Westminster, in The English Question 88ff (Robert Hazell ed., 2006).
93. th ed. 2007).
94. See, e.g,. John Curtice, What the people say - if anything, in The English Question 88ff (Robert Hazell ed., 2006).
95. See, e.g., David Heald & John Short, The Regional Dimension of Public Expenditure in England, 36 Regional Stud., 743, 752-753 (2002).
96. Vernon Bogdanor, The New British Constitution 108 (2009).
97. Paul Kingsnorth, The Progressive Case for England, The Guardian, Aug. 26 2008.
98. See Peter Leyland, Post Devolution: Crystallising the Future for Regional Government in England, 56 Northern Ireland Legal Q. 435, 453 (2005).
99. John Tomaney, The Evolution of Regionalism in England, 36 Regional Stud. 721-731 (2002).
100. Robert Hazell & Brendan O'Leary, A Rolling Programme of Devolution, in Constitutional Futures: A History of the Next Ten Years 36-40 (1999).
101. See Regional Development Agencies Act 1998, Schedule I: East Midlands, Eastern, North East, North West, South East, South West, West Midlands, Yorkshire and the Humber and London.
102. Regional Development Agencies Act 1998 ss. 4 & 5.
103. See White Paper: Your Region, Your Choice: Revitalising the English Regions, 2002, Cm 5511.
104. A referendum was held in 2004 under the Regional Assemblies (Preparations) Act 2003.
105. The same rule presumably applying to Welsh MPs, assuming that the Welsh Assembly gains lawmaking powers following the 2011 referendum.
106. See Michael Keating, The UK as a post-sovereign polity, in Devolution and British Politics 323 (Michael O'Neill ed., 2004).
107. For more detailed discussion, see Brigid Hadfield, Devolution, Westminster and the English Question, Pub. L. 301 (2005).
108. See Conservative Party Manifesto, 2010, p. 84.
109. William Hague, Michael Howard, and David Cameron, when leader of the opposition, have supported this idea.
110. See the Conservative Lib-Dem agreement reached after the 2010 election.
111. http://www.scottish.parliament.uk/business/bills/billguidance/gpb-1.htm#21 at par 2.3.
112. Written submissions to the Economy, Energy and Tourism Committee of the Scottish Parliament with respect to the Protection of Workers (Scotland) must be submitted by 3rd September 2010 and oral evidence will be taken between September and December 2010.
113. th ed. 2007).
114. Dawn Oliver, Improving the Scrutiny of Bills: The Case for Standards and Checklists, Pub. L. 219-247 (2006).
115. See Cabinet Office guide to making legislation para 22(1) last updated 11 May 2010 at http://www.cabinetoffice.gov.uk/making-legislation-guide/publication_in_draft.aspx.
116. This initiative was pioneered by Robin Cook as Leader of the House of Commons in 2004.
117. Christopher Carman & Mark Shephard, Committees in the Scottish Parliament, in The Scottish Parliament 1999-2009: The First Decade 25 (Charlie Jeffery & James Mitchell eds., 2009).
118. "Devolution of legislative competence to the Scottish parliament does not affect the ability of Westminster to legislate for Scotland even in relation to devolved matters. Nevertheless, as paragraph 4.4 of the White Paper explained, we envisage that there could be instances where it would be more convenient for legislation on devolved matters to be passed by the United Kingdom Parliament. However... we would expect a convention to be established [now referred to as the Sewel Convention] that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament.".
119. See Paul Bowers, "The Sewel Convention," House of Commons Library, SN/PC/2084, 25 November 2005.
120. The "Sewell convention" (see note 109) acknowledges that three types of legislation require the consent of the Scottish Parliament to be proceeded with: Westminster legislation for devolved purposes; Westminster legislation altering legislative competence; and Westminster legislation altering executive competence.
121. The "Sewel convention" is a colloquial term for the U.K. government's stated policy on legislation concerning devolved matters in the U.K. Parliament. It is named after the government minister Lord Sewel, who set out the terms of the policy in the House of Lords during the passage of the Scotland Bill 1997-98 on July 21, 1998.
122. These were for the Climate Change Bill, Criminal Justice and Immigration Bill, Dormant Bank and Building Society Account Bill, Education and Skills Bill, Health and Social Care Bill, Pension Bill, Housing and Regeneration Bill, Statute Law (Repeals) Bill, Energy Bill, Policing and Crime Bill, Local Democracy, Economic Development and Construction Bill, Welfare Reform Bill, Marine and Coastal Access Bill, The Borders Citizenship and Immigration Bill.
123. Gordon Anthony & John Morison, Here, There and (Maybe) Here Again: The Story of Law Making for Post-1998 Northern Ireland, in Devolution, Law Making and the Constitution 179, 192 (Robert Hazell & Richard Rawlings eds., 2005).
124. The eight Bills before the Assembly which required a Legislative Consent Motion in 2007-2008 were the Child Maintenance and Other Payments Bill, The Dormant Bank and Building Society Accounts Bill, The Climate Change Bill, The Criminal Justice and Immigration Bill 2007, The Health and Social Care Bill, The Education and Skills Bill, The U.K. Energy Bill, The Pensions Bill.
125. Outline of Assembly Procedures on Legislative Consent Motions, provided by the Legislative Programme Secretariat of the Office of the First Minister and Deputy First Minister.
126. The Assembly is amending its standing orders from 2010 in relation to legislative consent motions in line with the recommendations of the NIA Committee on Procedure to provide greater clarity and transparency. See Report: 34/08/09 Committee on Procedures, 15 September 2009.
127. The Political Parties, Elections and Referendums Act 2000.
128. Food Standards Act. See Page and Batey above at p. 511.
129. Regulation of Investigatory Powers Act and the Financial Services and Markets Act.
130. http://www.scotland.gov.uk/About/Sewel/KeyFacts.
131. The Queens Speech delivered on May 25, 2010, announced the government's intention to introduce a Scotland Bill to grant the Scottish Parliament more power over taxation and borrowing in line with the recommendations of the Calman Commission.
132. Jon Shortridge, New Development: The Evolution of Welsh Devolution, 30 Pub. Money & Management 87-90 (2010).
133. Michael Keating, Policy Convergence and Policy Divergence in Scotland under Devolution, 39 Regional Stud. 453, 459 (2005).
134. See, for example, Alison Bowes & David Bell, Free Personal Care for Older People in Scotland: Issues and Implications, 6 Soc. Pol. & Soc'y 435-445 (2007).
135. For example, Scottish finance secretary John Sweeney estimated a budget reduction for Scotland of £1.3 billion following the comprehensive spending review announced by the Westminster government on the October 20, 2010. See http://www.scotland.gov.uk/News/Releases/2010/10/20083324.
136. Rodney Brazier, Constitutional Reform: Reshaping the British Political System 121 (2008).
137. Anthony King, The British Constitution 212 (2007).