Docsity
Docsity
Prepare for your exams
Prepare for your exams

Study with the several resources on Docsity

Earn points to download
Earn points to download

Earn points by helping other students or get them with a premium plan

Guidelines and tips
Guidelines and tips
Sell on Docsity
Sell on Docsity
Docsity AI
Docsity AI
Log inSign up

Prepare for your exams

Study with the several resources on Docsity

Find documents

Prepare for your exams with the study notes shared by other students like you on Docsity

Search for your university

Find the specific documents for your university's exams

Docsity AINEW

Summarize your documents, ask them questions, convert them into quizzes and concept maps

Explore questions

Clear up your doubts by reading the answers to questions asked by your fellow students

Earn points to download

Earn points by helping other students or get them with a premium plan

Share documents
download point icon20 Points

For each uploaded document

Answer questions
download point icon5 Points

For each given answer (max 1 per day)

All the ways to get free points
Get points immediately

Choose a premium plan with all the points you need

Study Opportunities

Choose your next study program

Get in touch with the best universities in the world. Search through thousands of universities and official partners

Community

Ask the community

Ask the community for help and clear up your study doubts

Free resources

Our save-the-student-ebooks!

Download our free guides on studying techniques, anxiety management strategies, and thesis advice from Docsity tutors

UK's Asymmetrical Devolution: Powers, Competence, and Governance, Exams of Law

University of New England (UNE)Law

The concept of asymmetrical devolution in the uk, focusing on the legislative competence and executive power of devolved governments in scotland and wales. It discusses the implications of devolution on the union, the role of the uk supreme court, and the challenges and advantages of devolved institutions. The document also touches upon the potential for english devolution and the concerns surrounding the westminster parliament's relationship with devolved governments.

Typology: Exams

2023/2024

Available from 03/25/2024

geofchah
geofchah 🇺🇸

4.7

(7)

929 documents

1 / 11

Toggle sidebar

This page cannot be seen from the preview

Don't miss anything!

bg1
DEVOLUTION AND TERRITORIAL CONSTITUTION REVIEW NOTES
Devolution is a result of its demand = governed by the laws of demand and supply
•
Due to unwritten constitution, system of govt may adapt to evolving issues through pragmatic
responses
•
Devolution is asymmetrical: different amounts and types of power devolved to different areas
according to demand
o Scotland’s devolution package generous due to 74% support for devolution in referendum
o Wales’ package initially introduced more moderate devolution
o NI’s devolution complicated by conflict: existed throughout C20th until 1970 as violence
escalated, law of supply and demand allowed compromise to be reached by allowing
devolution with a provision enabling NI independence if supported by referendum
•
Constitution informed by pragmatism to accommodate diversity, history and traditions
•
Reactive and piecemeal, lack of design, coherency and structure England left without
devolved system of govt
Lack of devolution in England threatens the existence of the Union and shows failure to
account for ‘cumulative effect’ of devolution on the Union
Q: What are the practical limitations of this demand-supply model? Why is it difficult to establish
what people of a nation/ region want?
𝗌 Asymmetrical devolution allows greater amounts of power for certain nations, possibly
resulting in conflict between nations
𝗌 Westminster tight grips on power may restrict nations’ access to referendums in order to
discover opinion (Scottish Independence = ‘once in a generation’ event)
𝗌 Westminster retains ultimate power to legislate over all nations, only restricted politically
through conventions, not legally meaning what a nation demands may be overruled
Legislative Competence
•
Devolved govts legislative competence demos ability to act independently
o Scottish and NI always possessed general legislative competence = powers granted on
reserve powers basis, legislate on any issue subject to exceptions
▪
NI Act 1998, ss 5-8 and Scotland Act 1998 ss 28-30
▪
Specific legislation e.g., HRA
▪
Subject areas e.g., IR and defence
▪
Cannot enact legislation incompatible w EU law, ECHR, common law constitutional
rights or rule of law standards
o Despite limitations, powers are considerable on extent and type
▪
They are the primary legislatures - amending, repealing and replacing UK Acts that
apply to them different policy directions to rest of UK
o IN CONTRAST: Wales initially only able to exercise powers conferred upon it e.g., where an
Act gave ministers discretionary powers to make decisions, these could be made by
assembly where they affect Wales
▪
Did not allow Wales to pursue a distinct legislative agenda upset as assembly seen
as not useful
▪
GoWA 2006: enact primary legislation, initially on limited basis requiring UK govt’s
blessing
▪
2011: referendum supporting new system, restriction of UK permission dropped
▪
WA 2017: conferred powers model replaced with reserve powers BUT Wales still has
more powers reserved
pf3
pf4
pf5
pf8
pf9
pfa

Partial preview of the text

Download UK's Asymmetrical Devolution: Powers, Competence, and Governance and more Exams Law in PDF only on Docsity!

DEVOLUTION AND TERRITORIAL CONSTITUTION REVIEW NOTES

Devolution is a result of its demand = governed by the laws of demand and supply

  • Due to unwritten constitution, system of govt may adapt to evolving issues through pragmatic responses
  • Devolution is asymmetrical: different amounts and types of power devolved to different areas according to demand o Scotland’s devolution package generous due to 74% support for devolution in referendum o Wales’ package initially introduced more moderate devolution o NI’s devolution complicated by conflict: existed throughout C20th until 1970 as violence escalated, law of supply and demand allowed compromise to be reached by allowing devolution with a provision enabling NI independence if supported by referendum
  • Constitution informed by pragmatism to accommodate diversity, history and traditions
  • Reactive and piecemeal, lack of design, coherency and structure England left without devolvedsystem of govt Lack of devolution in England threatens the existence of the Union and shows failure to account for ‘cumulative effect’ of devolution on the Union Q: What are the practical limitations of this demand-supply model? Why is it difficult to establish what people of a nation/ region want? 𝗌 Asymmetrical devolution allows greater amounts of power for certain nations, possibly resulting in conflict between nations 𝗌 Westminster tight grips on power may restrict nations’ access to referendums in order to discover opinion (Scottish Independence = ‘once in a generation’ event) 𝗌 Westminster retains ultimate power to legislate over all nations, only restricted politically through conventions, not legally meaning what a nation demands may be overruled Legislative Competence
  • Devolved govts legislative competence demos ability to act independently o Scottish and NI always possessed general legislative competence = powers granted on reserve powers basis, legislate on any issue subject to exceptions ▪ NI Act 1998, ss 5 - 8 and Scotland Act 1998 ss 28 - 30 ▪ Specific legislation e.g., HRA ▪ Subject areas e.g., IR and defence ▪ Cannot enact legislation incompatible w EU law, ECHR, common law constitutional rights or rule of law standards o Despite limitations, powers are considerable on extent and type ▪ They are the primary legislatures - amending, repealing and replacing UK Acts that apply to them different policy directions to rest of UK o IN CONTRAST: Wales initially only able to exercise powers conferred upon it e.g., where an Act gave ministers discretionary powers to make decisions, these could be made by assembly where they affect Wales ▪ Did not allow Wales to pursue a distinct legislative agenda upset as assembly seen as not useful ▪ GoWA 2006: enact primary legislation, initially on limited basis requiring UK govt’s blessing ▪ 2011: referendum supporting new system, restriction of UK permission dropped ▪ WA 2017: conferred powers model replaced with reserve powers BUT Wales still has more powers reserved
  • UK SC – determines whether devolved legislature has legislated within its competence (two elected govts and legislatures against each other, needs politically independent resolution) o Judicial resolution included within devolution legislation [SA ss32 and 33, NIA s11, GoWA s112]
  • Devolution created role for SC as constitutional dispute adjudicator
  • Legal principles applied by SC: o Devolved nations’ powers restricted by devolution legislation (UK primary legislation) o Legislatures democratically elected – may make laws within their competence o UK parliament retains sovereignty o SC should not express views on policy – role for elected representatives – instead determine as matter of law whether devolved statute within competence, interpreted as any other statute (ordinary meaning) o Courts aim to achieve constitutional settlement and consistent interpretation coherent and stable system for devolved legislatures to legislate appropriately Devolution’s Evolution – Devolution in the UK is exhibited as a process

Northern Ireland:

  • UK Parliamentary govt model - separate executive, drawn from Assembly membership
  • Power sharing executive due to troubles need for a devolved govt to be supported by unionists and nationalists o Clearly demonstrates NI’s distinct model and UK’s pragmatic approach to devolution according to history and context o NI model normalised via 2016 Standing Orders any party that could have appointed a Minister but declined to can now be recognised as official opposition to allow Assembly to hold executive to account Democracy
  • One aim of devolution is to enhance democracy and ensure citizens feel they have influence in institutions governing them by providing more proximate institutions and ensuring representatives are democratically elected o Scotland and Wales use ‘additional member system’ – vote for constituency and regional (additional) members o Constituency – voted in with First past the post system = greatest no. votes in each becomes representative in legislature ▪ Ensures close link between constituents and legislature o Additional – vote for parties, seats allocated through formula ensuring a party’s total no. seats in legislature reflects its overall share of vote ▪ Beneficial for smaller parties as produces more proportionate results than FTTP
  • Eg: Lib Dems in 2016 Scottish Election compared to 2019 general o NI uses single transferable vote to ensure legislature’s party makeup reflects share of vote o HOWEVER these systems both make increasingly difficult for one party to secure majority coalition and minority govts more likely in devolved legislatures

England

  • England’s role in devolved nations = carry out acts they are unauthorised to do
  • Has no devolved institutions, happens by default when S, W & NI opt out of UK wide policies BUT still has no Institutions that correspond directly to devolved legislatures and administrations The ‘English Question’
  1. Should England be given constitutional voice eg through English Parliament and Government? a. England lacks benefits of devolution enjoyed by others
  2. Should devolution apply at a more localised level? a. 84.3% of UK: devolved power to England as a whole would not bring power closer to citizens b. Regional govts would reflect size of devolved nations
  3. Should we choose between these two or combine? FOR ENGLISH DEVOLUTION:
  • UK govt acts de facto as govt of England – no voice against devolved nations as must promote interests of whole UK inequalities within the UK (Oliver Constitutional Reform in the UK, Oxford
  • Possible Solution - English Parliament and Government increased attention on English issues by carrying out acts devolved govts conduct AGAINST ENGLISH DEVOLUTION:
  • Advocate for England unneeded – Lord Falconer argues devolution aims to protect S&W interests; England large enough to not require protected voice

o Countered by increasing acceptance of lack of political influence outside of London and South-East discontent and disenfranchisement

  • No strong public desire for English devolution as a whole
  • No political desire for radical constitutional change
  • Model may not be viable – England’s size and population asymmetrical power across union

‘English Votes for English Laws’

The ‘West Lothian Question’

  • Is it legitimate for non-English representatives to vote on legislation affecting only England? o Lack of reciprocity o MPs unaccountable to English Constituents and electorate Qs of democratic legitimacy o Eg: 2003 Health Bill applied only to England: majority of all MPs supported proposals, majority of English MPs did not Q: Do you think these voting figures imply unfairness? What exactly gives rise to unfairness?
  • Some unfairness implied as English MPs remain unable to vote on devolved matters such as health care that are highly impactful on the citizens affected by the legislation ministers of devolved nations unable to accurately reflect the voice of the target audience of the legislation
  • Undemocratic as people of England not heard through its representatives
  • With no accountability to the English electorate and not affected by legislation applying only to England, it is unfair and unnecessary
  • HOWEVER, these examples are isolated and do not represent the majority of the practise McKay Commission:
  • 2010 General Election: Conservatives did not secure UK majority but did secure England majority Lib-Dem-Tory coalition
  • Est McKay Commission to consider West Lothian UK decisions apply to devolved nations only when supported by a majority of that nation double count procedure and reveal names on votes to determine whether a bill likely to have a distinct effect on England would be supported by majority of English MPs o No legal consequences to a Bill that continued without English majority, but govt would suffer politically o Intended to discourage use of unaffected MPs to push legislation against English MP wishes o Proposal never implemented EVEL:
  • After 2014 Scottish Independence ref: balance calls for independence and promises of further devolution with need to satisfy English voters that their position was taken seriously
  • Lead to ‘English Votes for English Laws’ Arrangements implemented in 2015 by amending Standing Orders (internal rules) of the HC significant constitutional changes made informally
  • EVEL Triggered if Speaker determines that a bill/ provision: o Applies exclusively to England ▪ However, may be regarded so when has minor implications beyond England (difficult to define line where legislation may have more than a minor effect beyond England) ▪ Eg: legislation affecting English NHS may affect Welsh citizens if referred to E hospital ▪ Eg: English legislation is argued by Scotland to affect their expenditure o Is a measure that a devolved legislature could make if it related to them
  • Legislation to which EVEL rules apply only enacted w majority of all MPs + majority of English MPs o Allows English MPs to block legislation cannot have legislation imposed on them Concerns:
  1. UK executive’s administrative powers to intervene, scrutinise, regulate and override local govt conduct – especially in financial affairs a. Councils receive 25% spending from council tax, rest rely on central govt b. Central govt attach conditions and specify spending c. Localism Act 2011 – allows local referendum if excessive increase in council tax proposed i. Until then what constitutes ‘excessive’ had been controlled by Sec of State, remains case in Wales Localism
  • Localism Act 2011 – aimed to decentralise power to communities o Referendum on council tax
  • HOWEVER Sec of State still decides what is ‘excessive’ – central retains much of its control of local finance o S1 ‘General power of competence’ = the power to do anything any individual may do
  • HOWEVER, limitations to this power as they are excluded in the Act, Sec of State may set conditions on exercise of general power UK govt intervene when council perceived as failing ▪ Local govt legally required to arrange continuous improvements under s3(1) Local Govt Act 1999 – failing this, Sec of State or appointed may exercise authority ▪ Eg: failings at Doncaster Metropolitan Borough Council sec of state control, stripping council of responsibility for Children’s services
  • Abolition of Standards for England – body responsible for monitoring ethical standards in local govt
  • Local Audit and Accountability Act 2014 Abolition of Audit Commission – councils now responsible for appointing independent auditors
  • Periods of austerity remove autonomy of councils by restricting funding
  • Centralism engrained in system To what extent is governance in the UK multi-layered?
  • Multi-layered govt requires diffusion of power = local govt contributes to this but in practise is restricted by central govt’s tendency to intervene and the subsequent limitations placed on local govt’s autonomy and ability to assert power Regional Governance
  • Recent shift from localism regional governance
  • Local Democracy, Economic Development and Construction Act 2009: inc provision for ‘combined authorities’ – exercise existing local powers together and more extensive conferred powers o Eg Greater Man CA est 2014 inc 10 authorities: devolved transport budget, strategic planning powers, housing investment fund, power to reform education provision and more
  • Cities and Local Govt Devolution Act 2016: elected mayors for CA, extends conferred functions and ability for Sec of State to confer powers of Police and Crime Commissioner onto mayor
  • Initial focus on urban areas, recent move to other areas patchwork of CA and mezzanine layer of govt Concerns:
  1. Devolution remains in hands of central govt – deals must be negotiated, Treasury has final say about deal content, majority of deals secured with requirement of elected mayor
  2. Failure to engage with public – deals made in private between central and local with lack of consultation to public in deal making process (benefits of devolution must engage people it affects)
  3. New mayors at the forefront of CAs a. UK govt desire for high-profile individual to hold publicly accountable

b. BUT mayors arguably not sufficiently locally accountable as Cities and Local Govt Devolution Act 2016 shows some limitations of power and centralising tendencies limits local scrutiny i. Eg local overview and scrutiny committees may only review past decisions and recommend they be reconsidered (not block) and central retains control of committees ii. 2016 Act enables Sec of state to make provision about local authority governance arrangements inc membership, suggests CAs not trusted in these areas

  1. Constitutional fragility of the legal basis for regional devolution – constitutional position of CAs distinct from that of devolved nations a. S & W institutions have political security of assurance permanence, CAs lack b. Cities and Local Govt Act 2016 is merely legislation permitting central govt to make orders and Statutory Instruments (secondary legislation) to create individual CA arrangements through deals CA lack secure legal basis, demos reluctance of central to decentralise HOWEVER, a model for future developments likely needed due to: o Regional inequalities and perception of being left behind due to lack of investment and over- concentration of political, administrative and financial power in London o Feelings of disenfranchisement o Lack of proximity to decision-makers inefficient Whitehall directives imposed o Brexit referendum reflected feelings of being left behind o 2019 General Election won Labour stronghold seats on promises of ‘levelling up’ must deliver these expectations, devolution may be the tool required to ensure this o COVID- 19 pandemic exposed regional differences and inequalities ▪ Tier system: northern regions more readily placed into higher tiers, distance arguably led to greater disregard for citizens’ well-being, financial status etc elected mayors such as Andy Bernham voicing concerns and demanding inequalities be addressed. Contrasts to London and South-Easts slow move into a higher tier when in the same (if not worse) circumstances ▪ Dispatch of resources across England England Conclusions:
  • EVEL + mezzanine layer of govt through CA = pragmatic responses, reflecting UK’s approach to constitutional change
  • EVEL – address concerns of English representation within UK as a whole while avoiding political upheaval of creating English Parliament and Govt through amendments to Standing Orders o Reflects flexibility of constitution
  • CA – attempt to provide some form of ‘devolution’ through pragmatic conferral of power creates system that lacks design o Reflects devolution within the nations, given on a supply and demand basis
  • Unstructured constitution and devolution mean failure for attempts for uniform governance structures may be inevitable
  • HOWEVER, HL Constitution Committee noted long term effects of range of devolution deals on the long-term governance of England have been overlooked and govts end goal of these reforms is unclear

The Nature and Development of the Territorial Constitution

Federal:

  • USA: 50 states, each w legislature and admin, certain matters handled by federal legislature (Congress) and admin (headed by President) – US Federalism differs to UK devolution as:

Legal or Political Constitution?

  • Appears to be moving from political legal mode of constitution
  • Legally able to abolish devolution settlements but political model of constitution prevents in practise o Recognised that interference with devolved matters goes against spirt of new constitutional arrangements Sewel convention (political agreement)
  • Rawlings, ‘Concordats of the Constitution’: almost nothing in devolution legislation about structures and processes of intergovernmental relations excessive use of ‘concordats’ (instant conventions) o Memorandum of Understanding - lays out relationship between UK and institutions o Several bilateral concordats used to set out relationship between certain central and devolved govt department o Reliance on extra-legal agreements shows political nature of constitution and devolution settlements
  • However, there is a significant legal dimension to territorial constitution: o Devolution legislation legally sets out in detail the extent of the powers of institutions o Devolution settlements’ limits on powers are judicially enforceable o Legal dimensions of territorial constitution augmented as limits of UK parliament’s power become clear as a result of Scotland Act 2016 Legislating on Devolved Matters:
  • Devolution legislation explicitly states conferral of legislative competence does not affect power of UK Parliament to legislate for them clarifies that central legislature remains sovereign
  • SA 2016 and WA 2017: UK Parliament will not normally legislate on devolved matters w out consent of devolved institution o Reflects Sewell Convention o Still no legal constraint on Parliaments’ power o Broad understanding of Convention – that Westminster will not alter scope of devolved institutions competence - is not legislated o ‘Not normally’ = unclear if legislation gives legal effect to Convention, more of a political statement showing recognition of conventional restraint, lacks any legal force, only of political significance as would only result in political difficulties o Contribution to the relationship between political and legal constitutionalism = law used to heighten political restraints increased constitutional security of devolution arrangements
  • However, Sewel Convention hardly restrains a UK govt w a HC majority o May form majority on a matter all nations disagree with eg EU (Withdrawal Agreement) Act 2020 enacted by UK Parliament, all 3 devolved nations refused consent Continued Existence of the Devolved Institutions
  • Declaration that S&W institutions not to be abolished unless by way of referendum shows Parliament’s commitment to and the permanence of devolution arrangements
  • Is Parliament prevented from abolishing S&W institutions without referendum? o Permanence provisions’ aim unclear - do not explicitly extend to legally disabling, merely states they are not to abolish, not that they cannot be abolished ▪ Parliament normally declares the legal position, not what is to be done/ not done o Unclear if UK Parliament is able to restrict itself in this way
  • Permanence provisions may not legally change position of devolved institutions in constitutional arrangements
  • Some contribution to political constraints: If UK Parliament attempted abolishing without consent breakup of the union = political disincentive already existed before permanence provisions
  • Symbolic contribution – illustrates devolution is more than just power conferred and potentially removed by Parliament and is a constitutional reality

Future of the Union

  • Concern amongst those who wish union to continue – devolution may be pushing nations apart and constitutional arrangements and bonds between the nations may not hold together
  • HL Constitution Committee 2016 – Union under threat and approach to devolution must be reassessed, calls for more holistic and systematic approach o Piecemeal devolution shows lack of consideration for cumulative impact of devolution and its increase in centrifugal forces o Core functions of UK Parliament should be established o Devolution of any further powers should be in line with these core functions
  • 2014 Scottish Independence referendum: narrow remain won by promises of future devolution
  • 2016 Brexit referendum: Scottish vote against Brexit, taken out of EU against its will
  • Welsh increasing leaning towards independence
  • Decline in UK wide political parties clash between governments