Is it constitutionally significant?
Unitary government- ultimate legal authority is vested in the centre, no division of legal authority between centre and regions. UK, France, Italy, Japan.
Federal government- legal authority is distributed between the centre and the regions, distribution is entrenched with rules to deal with conflict of authority- conflicts ultimately fall to be resolved by constitutional court. USA, Canada, Germany, India. There are exclusive areas of legal authority. Constitutional security of separation of powers.
Devolution- there are three types 1) adminstrative devolution (department of regional affairs, deconcentration of powers in national pre 1998.) 2) executive devolution (formal, delegation of power to the regions, subordinate law making ability. Administrative devolution as well. Only have the power to implement policy) 3) legislative devolution (limited primary legislation powers and can determine policy.)
Asymmetrical devolution- in UK, different types and amounts of power to different parts of the UK, due to different levels of enthuthiasm.
The centre retains legal authority. Started in 1998 and is a delegation of power.
Position in Scotland before 1998? Executive- Sec of State for Scotland, Scottish Office. Parliament- Scottish Grand Committee, Select Committee on Scottish Affairs, standing committees.
Devolution under the Scotland Act 1998- administrative devolution. Scottish Parliament- additional member vote with around 100 members. Fixed terms. Single chamber- is unicameral. Proportional voting to prevent one party getting majority. and Scottish Government- SNP has majority.
Scottish Parliament has primary legislative powers but there are limits on its legislative competence. These are known as Acts of Scottish Parliament. S29 of Scotland Act says that they cannot legislate incompatibly with convention rights or on matters outside of Scotland.
Limited legislative competence- no competence to legislate in a way that is not compatible with Covention rights or community law, not can it legislate outside of Scotland S29.
There are reserved matters- held in S5- that they cannot legislate on. These include constitution, policitical parties, foreign matters and defence.
Mechanisms for checking legislative competence- i) introduction of bill- S31(1) and s31(2) ii) pre enactment review- s33, S35 and iii) post enactment review- schedule 6. Legislative competence is expanding in Scotland, Scotland Act 2012 now deal with guns, driving and drugs
The Westminster Parliaments ability to legislate for Scotland- S28(7)- nothing in Scotland Act will stop Westminster making laws for Scotland- they can even repeal the Scotland Act if they want to. Sewel Convention- non legal rule to stop England legislating on devolved Scottish powers without the permission of Scottish Parliament. Has been used 73 times which is a lot. There is a proposition to make it statutory. The Smith Commission wants legislation saying that the Scottish Parliament is permanent.
Changes under the Scotland Act 2012- competence of Scottish parliament and jurisdiction over legal questions.
Independence for Scotland- Referendum was held on 18th september 2014, 45% voted yes and 55% voted no.
Position in Wales before 1998- Executive- Sec of State for Wales, Welsh Office and Parliament- Welsh Grand Committee, Select Committee on Welsh Affairs. Now have a National Assembly for Wales. 1 chamber with 60 members and they are elected by the additional member system.
Government of Wales Act 1998- Secondary legislative powers only. Powers devolved to a national assembly for wales in 3 ways- 1) by GWA 1998 itself 2) by subsequent acts of Parliament and 3) by Orders in Council under s22 of GWA. They are a body coperate, and cannot make secondary legislation that conflicts with Parliaments.
Aims of the GWA- 1) to effect a formal separation of powers between the executive and legislative branches- previously lacked this, body coperate. 2) to enhance the legislative powers of the Assembly- still only has powers on matter expressly devolved to it. 3) to reform the electoral arrangements.
Welsh referendum 2011- if voted yes the assembly would be able to make laws on all matters in the subject areas, without needing Parliaments agreement. This returned a yes vote at 63%.
3 ways to enhance the Assemblys legislative powers- 1) greater use of existing means of conferring powers. 2) New Order in Council mechanisms to enable Assembly to pass its own legislation within the scope of power delegated by Parliament known as Assembly Measures. 3) Possibility of primary legislation powers? Also the Welsh Referendum.
There is an emergence of separation between legislation and government to become Parliament.
Northern Ireland is a different situation due to the violence and history of the country. 1920-1972 had devolution- Government of Ireland Act 1920. The Secretary of State for Northern Ireland had a large role. Now has a Northern Ireland Assembly.
Legislative powers of the Northern Ireland Assembly- primary legislative powers, 'excepted' matters, 'reserved' matters, 'transferred' matters. Has the same limits on legislative competence as Scotland- plus the assembly cannot legislate in a manner which discriminates against any persons on the grounds of religious belief or political opinion- S6.
Nothern Ireland Act 1998 was made due to the Belfast Agreement. 71% voted for it. Tried to get power sharing between two sides. All major parties in executive and premiership. Parallel consent.
Some see NI as entirely exceptional due to the complex national issues. Conflicts due to policitcal fall out. Makes less laws than England and Wales.
The English Question
Is the answer to strengthen England's voice within the Union? eg English Parliament? English votes on English laws? English independence?
Or is it to decentralise the government of England? eg Electied regional assemblies? Revivial of local government? Elected mayors?
Dispute settlements in the devolved system- Non legal mechanisms- Memorandum of Understanding 1999, concordats (agreements) and Joint Ministerial Committees (non binding, last resort, and are rarely used).
Mechanisms set out in the devolution statutes- On introduction of the bill, pre enactment review and post enactment review.
Devolution jurisdiction of SC- S40(4) and Schedule 9 of the Constitutional Reform Act 2005. How should future devolution issues be solved? Robinson v SoS for Northern Ireland 2002- evidence that statutes have more generous interpretation than normal acts. This is politically choppy waters for the court- has taken about 14 years for case law to come about. Cadder 2010, Fraser 2011, AXA 2011, Agricultural Sector (Wales) Bill- reference by the AG for England and Wales 2014.
'a sovereign parliament is, according to the traditional view, immune from judicial scruitiny as it is protected by the principle of sovereignty. But it shares with the devolved legislation, which are not sovereign, the advantages that flow from the depth and width of the experience of its elected members and the mandate that has been given to them by the electorate. This suggests that the judges should intervene, it at all, only in the most exceptional circumstances- Lord Hope AXA. Supreme Court acting like a court in a federal state.
Constitutional significance- approach to constitutional reform? A flexible constitution? The persistence of the political constitution? Constitutional principles (PS, RoL, SoP)? Unitary v Federal? (partially federal, not really though.)
Westminster Parliament could abolish devolution and its legislation if they wanted.