#16716 - Devolution - Constitutional Law

Multilayered Government

1. Devolution in Northern Ireland, Scotland, Wales

   1. What is devolution?

      1. An attempt to answer fundamental questions about where government power should reside

      2. In democracies, the answer turns upon arrangements considered legitimate by the people

         1. Hence, when there is a strong sense of shared identity and destiny, high centralized government is acceptable

         2. But when such bonds are weaker, the architecture of the state might be commensurately looser – people may be contented with the state dealing with defence, national security, etc. while demanding regional governments to represent their unique interests and outlooks, sometimes leading to succession

   2. History

      1. In 1535, Welsh constituencies came to be represented in English parliament. UK of Great Britain, formed by joining of E, W & S in 1707 became UK of Great Britain and Ireland in 1800

      2. Since then, though they were all under Westminster, they are not treated identically – some legislation applies only to a particular region

      3. UK’s constitution was not deliberately drafted and designed – rather, it is the product of centuries of gradual change, of pragmatic responses to issues that have arisen

         1. However, the relentless pragmatism, which has a “reactive and piecemeal” quality that overlooks the need for a “coherent vision for the shape and structure of the UK”

   3. Legislative power

      1. Scottish Parliament and NI Assembly have, since inception, possessed general legislative competence – authorized to enact legislation on any issue, subject to certain exceptions such as HRA, EU Law, international relations, and defence

         1. If they exceed legislative authority, courts can intervene

         2. *Henry VIII clause – S Parliament & NI assembly are capable, within their legislative competence, of amending, repealing and replacing AoP insofar as they apply to S & NI, not just retrospective, but also prospective

            1. If an AoP fall partly in and partly out of devolved areas, the devolved legislatures can only amend the parts that concern devolved areas

      2. In contrast, the system originally adopted in Wales was one of administrative or executive, as opposed to legislative devolution

         1. When AoP gave Ministers discretionary power to make certain choices, they could be made by the Welsh Assembly if they affected Wales

         2. Ron Davies – devolution is a “process not an event”, referring to later acts such as S Act 2012/2016, W Act 2014/2017. These are all work in progress as far as scope of powers is concerned

   4. Executive power

      1. Distinction between legislative and executive in states – e.g. Welsh Assembly v Government…

   5. Democracy

      1. Devolution pursues the goal of democracy of enabling people to feel like they have real influence and are genuinely connected to governance, by providing institutions that are more proximate – geographically, politically and culturally – to them

2. Nature and development of the territorial constitution

   1. Distinction between a federal system and devolution

      1. UK’s system is asymmetrical, and as a result, UK Parliament and government’s involvement differs across the country. In the US, all 50 states have the same degree of power

      2. US federal system emerged from a bottom-up approach – individual states banding together deciding that certain matters should be dealt with by a central government. UK – top down, PS is legally sovereign, and confers limited power on devolved states

         1. However, federalism is not a binary question, but a matter of degree

      3. Different degrees of constitutional security – in US, set by the Constitution, which can only be changed by 75% approval by all states. Devolution in UK passed by AoP – open to parliament to amend its own enactments, hence no legal security as a matter of strict law

         1. Although legal security is lacking, there is considerable political security

         2. UK Parliament has recent legislated to give at least the appearance of legal security

3. The territorial constitution – legal or political phenomenon

   1. Disjunction between positions prescribed by legal theory, and real world politics (Sewel convention – constitutional self defence)

   2. In the absence of law, the vacuum in the “vast constitutional space” has been filled by “concordats” (Rawlings), best thought of as instant conventions. They are explicit, but legally non-binding agreements, such as the Memorandum of Understanding setting out terms of how the UK & devolved governments should relate to each other

   3. Legal aspects

      1. Devolution legislation sets out in detail the powers, and their limits, of devolved institutions, with special provision for judicial resolution of “devolution issues”

4. Legislation on devolved matters – the Scotland Acts

   1. What they say

      1. S Act 1998 provided that the conferral of powers on S Parliament “does not affect the power of the Parliament of the UK to make laws for S”

      2. But a provision in S Act 2016 says that “it is recognized that the Parliament of the UK will not normally legislate with regard to devolved matters without the consent of the S Parliament”

   2. Legal & political constitutionalism

      1. The 2016 Act refers to the Sewel convention, but to assume that it turns the convention into a legal restraint on Westminster would be rash

         1. The legislation at most only refers to a part of the convention. A broader understanding has emerged that *the convention also applies to Westminster legislation that adjusts the scope of devolved competence

         2. It’s far from clear that the legislation gives legal effect to any part of the constitution – far from unambiguous

         3. Hence, the better view is that – perhaps paradoxically – the significance of the 2016 Act’s legislative acknowledgement is political rather than legal. By formally recognizing the convention in legislation, it explicitly makes UK parliament a party to a convention

      2. The overall picture is that the 2016 Act leverages the relationship between legal and political constitutionalism in a subtle but important way – the law is used to contribute to *augmentation of both the political restraints upon the UK Parliament and the constitutional security of the devolution settlements

   3. Continued existence of devolved institutions

      1. 2016 Act inserts a new provision that the S parliament & government are permanent features of UK constitution, qualified in 2 ways –

         1. Firstly, explaining that its purpose is to signify the commitment of the UK parliament and government to the Scottish counterparts

            1. What does this actually do? Political pressure against doing this is already overwhelmingly strong

         2. Secondly, a declaration to the effect that Scottish institutions are not to be abolished except by a referendum

      2. Question is – does this legally disable Westminster from abolishing Scottish institutions without consent expressed via referendum? This is doubtful for 2 reasons –

         1. By interpretation, the “permanence” provisions do not unambiguously demonstrate that UK parliament intended to restrict its own legal powers

         2. Even if that is not true, can parliament actually imposed this limit on itself? Can be examined through “manner and form” view, and somewhat supported by Jackson, but this seems to be a case where parliament makes it impossible for itself to do something.

*AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46, [42]-[52] per Lord Hope

1. Important statutes/conventions/law

   1. S29(1) of the Scotland Act provides that no provision of an Act of the Scottish Parliament is law if it is outside the legislative competence of the Parliament. S29(2) lists a series of matters that would render such a provision outside legislative competence, including the following:

      1. it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,

      2. it relates to reserved matters,

      3. it is in breach of the restrictions in Schedule 4,

      4. it is incompatible with any of the Convention rights or with EU law

      5. it would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland.”

   2. s28(7) provides that that section shall not affect the power of the United Kingdom to make laws for Scotland

2. Background

   1. The Damages (Scotland) Act 2009, an act of the Scottish Parliament, provided that certain asbestos-related conditions were actionable (in Scotland) in the law of personal injury.

   2. In 2007, HoL had ruled in a series of English appeals that pleural plaques did not constitute recoverable damage for the purposes of law of negligence.

   3. AXA & other insurance companies sought to challenge the 2009 Act both on common law & on convention rights grounds

   4. Counsel for AXA argued that this list in S29(2) was not to be construed as exhaustive and in particular, given that the Scottish Parliament is a statutory body, its actions and decisions were in principle judicially reviewable on the common law grounds of illegality and irrationality

3. PS & Judicial review – Lord Hope

   1. Background

      1. “whether Acts of the S Parliament are amenable to judicial review, and if so on what grounds, is a matter of very great constitutional importance – the root of the relationship between the democratically elected legislatures and the judiciary”

         1. The Court of Session has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted

      2. S29 is not meant to be a complete or comprehensive statement of limitations on the powers of the...