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Devolution - Coggle Diagram
Devolution
Scotland, Wales and Northern Ireland Post 1998
Devolution tends to become self-perpetuating. There's further legislation devolving more power over the following 3 decades:
Scotland:
- Scotland Act 2012
- Scotland Act 2016
Wales:
- Government of Wales Act 2006
- Wales Act 2014
- Wales Act 2017
Northern Ireland:
- Northern Ireland Act 2009
Legislative Competence
- All devolution settlements in Scotland, Wales and Northern Ireland create both legislature (Assembly/Parliament) and an executive (Government/Executive)
- Legislature is empowered to pass "Acts" which can change law, including existing Acts of the Westminster Parliament
But an Act is NOT LAW if its outside the "legislative competence" of the assembly. It must not:
- Form part of the law of territory other than [S/W/NI] or remove functions otherwise in relation to [S/W/NI]
- Breach EU or European Convention rights
- Breach other specific statutory restrictions
Challenges
- Since Acts of a devolved assembly are "not law", if strayed outside the legislative competence, rights of challenge available cannot be used against Westminster legislation
- Law officers in each jurisdiction can refer questions of legislative competence to the Supreme Court after a Bill is passed but before royal assent
- Definition of some "reserved" matters are open to interpretation
Christian Institute v Lord Advocate:
- Provisions of the Children and Young People (Scotland) Act 2014 were held by the Supreme Court to be a disproportionate interference with rights under Article 8 of the European Convention of. Thus, provisions are void
Legislative consent
- The ability to challenge Acts (effectively on the basis that they are ultra-vires) emphasise that devolved assemblies are creations of Westminster legislation and don't have the same constitutional status as the UK Parliament
- Westminster has not lost devolving power. It can legislate for Scotland and Northern Ireland. This raises risks of conflicting legislation and constitutional clash
- A resolution is in a convention (Sewel Convention) adopted by the UK Parliament that it won't conduct devolution without the consent given in the form of a Legislative Convention
- This is written in the Scottish and Welsh devolution statutes (Scotland Act 1998 section 28(8), Government of Wales Act 2006 section 107(6))
Permanence
- All devolution legislation establishes an Executive alongside the legislative assembly. It makes provisions for ministers similar to the Whitehall structure. Various executive functions are transferred to minsters to exercise in the devolved territories
- A declaration of permanence of both assemblies and executives:
- The Scottish Parliament and the Scottish Government are a permanent part of the UK's constitutional arrangements
- The purpose of this section is to signify the commitment of the Parliament and the Government of the UK to the Scottish Parliament and the Scottish Government
- In view of the commitment to the Scottish Parliament and Government, they are not to be abolished except on the basis of the people of Scotland voting in referendum
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Reserved Matters
- "Reserved" means reserved to the Westminster Parliament
- Each Act contains a long list (similar but not the same) of subject-matter that is "reserved" and hence cannot be legislated for by the assemblies
- Everything not reserved is "transferred" (i.e. devolved)
- Reserved matters have been amended overtime
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Brexit and Devolution
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Legislative Consent, Devolution and Brexit
- UK Governments followed a political convention (Sewel Convention)
- Per the convention, UK Parliament will not normally legislate with regard to devolved matters without consent of the devolved parliament. Applies when legislation:
- Changes the law in a devolved area of competence
- Alters the legislative competence of a devolved legislature
- Alters the executive competence of devolved ministers
- Supreme Court in Miller (1) states that Sewel remains a political convention: "policing the scope and manner of its operation does not lie within the constitutional remit of the judiciary".
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Definitions
Arrives from 2 fundamental questions:
- At what level within a state should political power be exercised?
- To whom, and how should the holders be held accountable?