Devolution refers to the decentralization of power from central institutions in London to regional institutions exercising executive and legislative authority in Scotland, Wales, and Northern Ireland. This chapter explores the principle of devolution, both in terms of its historical development and its constitutional importance. It discusses recent issues and debates relevant to the role that it continues to play in the UK Constitution through the established institutions in Scotland, Wales, and Northern Ireland. All this is tied together in consideration of a problem scenario which encourages discussion of the powers of the devolved institutions and their relationship with centralized authority at Westminster.
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9. Devolution
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5. Parliamentary government and the legislative process
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter first describes the UK legislature. The legislature of the UK is the Queen in Parliament. Parliament is bicameral, meaning that, apart from the Queen, there are two legislative chambers called the House of Lords and the House of Commons. The House of Lords—composed of life peers, senior bishops, and some hereditary peers—is guardian of the constitution through the work of the House of Lords Constitution Committee and protects the constitution and initiates and revises legislation. The House of Commons—composed of constituency representatives organized on party lines under the whip system—is the principal legislative chamber and plays a significant role in scrutinizing the executive. The discussion then turns to the legislative process, covering electoral law, alternative voting systems, and the devolution of the legislative function including the Wales Act 2017.
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10. Devolution in Scotland
Aileen McHarg
Scotland’s devolved Parliament and Government were established in 1999 under the Scotland Act 1998. The current devolved arrangements build upon earlier institutional arrangements for the distinctive governance of Scotland, elements of which date back to the Union of 1707. By creating both a distinct legislature and separate institutions of political representation for Scotland, the 1999 reforms were nevertheless of profound constitutional significance. This chapter traces the development of devolved government in Scotland, arguing that the history of Scottish devolution is best understood as a response to nationalist sentiment: the assertion of the right of the people of Scotland to self-governance and self-determination. The historical trajectory has been one of increasing autonomy and constitutional recognition, and this pattern has continued since 1999 (culminating in an—unsuccessful—referendum in 2014 on the question whether Scotland should become wholly independent of the United Kingdom). However, despite the extensive powers enjoyed by, and the political importance of, the Scottish Parliament and Government, the status of devolution within the United Kingdom constitution is ambiguous and contested. The chapter also explores the constitutional status of devolution across two dimensions: the juridical—i.e. how the powers of the Scottish Parliament and Government are understood and interpreted by the courts; and the political—how the devolved Scottish institutions relate to their counterparts at UK level. The chapter ends by exploring how the tensions between Scotland’s powerful political claims for constitutional recognition, yet weak legal protection, have played out in relation to Brexit, and may play out in future in a Scottish political context still dominated by the independence question.
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11. The Welsh Way/Y Ffordd Gymreig
Richard Rawlings
Welsh constitutional development in recent times is characterized by a convoluted and ongoing set of legislative transformations and by the emergence of a distinct policy approach not only for the sub-state polity itself but also under the banner of a ‘new Union’ for the United Kingdom as a whole. Examination of the design and dynamics of the Wales Act 2017 serves to illuminate the difficulties and rewards of the territorial constitutional journey, especially in terms of central government conservatism in the face of principled argument and of the scope afforded for home-grown democratic renewal. In terms of the extended Brexit process, where competing conceptions of the UK territorial constitution are brought to the fore, the Welsh Labour Government is seen combatting potentials for centralization under the rubric of a ‘UK internal market’, deal-making in the name of mutual benefit, and championing a new brand of shared governance in the UK. Today, the workings of the justice system in Wales are being examined on their own for the first time in two centuries by an independent commission established by the Welsh Government. With a new stage in the Welsh constitutional journey in prospect, a series of foundational questions is raised. This chapter reviews the key elements of the arrangements made for devolving legislative and executive power to Scotland, Wales, and Northern Ireland, explaining how these arrangements have developed over time and are still doing so. Particular attention is paid to the implications of the result of the independence referendum in Scotland in September 2014, not just for Scotland but also for England. Consideration is given to how mechanisms for making devolution work more effectively might be devised and to what the effects might be on devolution if the UK’s membership of the EU or its commitment to the European Convention on Human Rights are seriously called into question.
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14. Federalism
John McEldowney
Federalism, to date, has proved unattractive to the United Kingdom. The United Kingdom is commonly described as a unitary state, whereby governmental power is primarily exercised through a sovereign Parliament at Westminster. The UK may be distinguished from Federal countries, notably the United States or Germany. In federal systems, sovereign power is shared between the federal government and the states. However, the description of the United Kingdom as a unitary state is an oversimplification as there are many instances of devolved, shared and autonomous powers that do not easily fit under a centralized view of the state. These ‘quasi-federal’ elements of the constitution arise through the UK Parliament delegating to regional and local communities a variety of powers and responsibilities through elected local and municipal authorities as well as devolved ‘deals’. Since 1989, powers have been distributed to the four nations of the United Kingdom: England, Scotland, Wales and Northern Ireland through extensive, and increasing, devolved powers (devolution) including a variety of tax-raising powers. There is also a London Assembly with devolved powers. The future of the UK after Brexit is uncertain and there are deep divisions of opinion. England and Wales voted for Brexit while London, Northern Ireland and Scotland voted to remain within the EU. Different constitutional configurations were suggested for the four nations, during the nineteenth century, including federalism, Irish home rule and independence as well as strengthening local government. No exact definition of federalism emerged from the different variations supported at one time or another during this period. Consequently supporters of federalism have struggled to have a single configuration to make their case. Overall federalism was rejected as inconsistent with the orthodoxy of a unitary state formed from an incorporating union centred around a sovereign Parliament. Has the extent of substantial devolved and delegated powers reached a tipping point that places a form of divisible federalism as a way of addressing current concerns and controversies including Brexit? Any formal adoption of federalism would alter the role of the UK Supreme Court as well as future relations with the EU after Brexit. Federalism might provide a mechanism for a changing unitary state to address 21st-century challenges amidst a perceptible shift to a ‘quasi-federal’ state with devolved governments and many shared or delegated powers.
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9. Devolution in Northern Ireland
Brice Dickson
Northern Ireland has had a devolved legislature and government, off and on, since 1921. This chapter first examines the nature of the devolution arrangements in place between 1921 and 1972 and then explains what was done to keep Northern Ireland running during the periods of direct rule from Westminster and Whitehall between 1972 and 1999 and between 2002 and 2007. The third section looks at how devolution operated under the Belfast (Good Friday) Agreement from 1999 to 2002 and from 2007 to 2017. The chapter then considers the reasons for the failure since 2017 to get devolution re-established and concludes by canvassing what the future constitutional arrangements for Northern Ireland might be. Taken in the round, Northern Ireland’s experience of devolution during the past 98 years has been very troubled. Brexit, alas, seems unlikely to make it less so in the years ahead.
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4. Local and Devolved Government
Sir William Wade and Christopher Forsyth
This chapter begins with a discussion of various aspects of local government including its historical development, principal functions, operations and proceedings, revenues, audit system, and central influence and control. It then describes the legal status and responsibilities of the police force and self-government in Scotland and Wales.
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4. Local and Devolved Government
Sir William Wade, Christopher Forsyth, and Julian Ghosh
This chapter begins with a discussion of various aspects of local government including its historical development, principal functions, operations and proceedings, revenues, audit system and central influence and control. It then describes the legal status and responsibilities of the police force and self-government in Scotland and Wales.
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5. Parliamentary government and the legislative process
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter first describes the UK legislature. The legislature of the UK is the King in Parliament. Parliament is bicameral, meaning that, apart from the King, there are two legislative chambers called the House of Lords and the House of Commons. The House of Lords—composed of life peers, senior bishops, and some hereditary peers—is guardian of the constitution through the work of the House of Lords Constitution Committee and protects the constitution and initiates and revises legislation. The House of Commons—composed of constituency representatives organized on party lines under the whip system—is the principal legislative chamber and plays a significant role in scrutinizing the executive. The discussion then turns to the legislative process, covering electoral law, alternative voting systems, and the devolution of the legislative function including the Wales Act 2017.
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Reference by the Attorney General and the Advocate General for Scotland—United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and European Charter of Local Self-Government (Incorporation) (Scotland) Bill [2021] UKSC 42, Supreme Court (also known as the Incorporation References Case)
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Reference by the Attorney General and the Advocate General for Scotland—United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and European Charter of Local Self-Government (Incorporation) (Scotland) Bill [2021] UKSC 42, Supreme Court (also known as the Incorporation References Case). On its face, this case concerns the two Bills of the Scottish Parliament which sought to incorporate two international treaties into Scots law. More significnatly, this case—alongside the Continuity Bill Reference case—speaks to the nature of the devolution settlement, its democratic credentials, and the relationship between the UK Supreme Court, the devolved institutions, and the Westminster Parliament. The document also includes supporting commentary and questions from author, Thomas Webb.
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Imperial Tobacco Ltd v The Lord Advocate (Scotland) [2012] UKSC 61, Supreme Court
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Imperial Tobacco Ltd v The Lord Advocate (Scotland) [2012] UKSC 61, Supreme Court. This case concerned the devolved legislative competence of the Scottish Parliament, the powers reserved to the Westminster Parliament under the Scotland Act 1998, and how these provisions should be interpreted. The statutory interpretation of constitutional legislation is also considered. The document also includes supporting commentary and questions from author Thomas Webb.
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2. History and challenges
Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter explores the history of environmental law in England and Wales and discusses some of the challenges encountered in the past when enacting legal responses to environmental problems, focusing on why today’s environmental law looks the way it does. The chapter also focuses on the question of whether environmental law actually works.
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Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998 [2022] UKSC 31, Supreme Court (also known as Scottish Independence Referendum Bill)
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotland Act 1998 [2022] UKSC 31, Supreme Court (also known as the Scottish Independence Referendum Bill). This case concerned whether a reference by the Lord Advocate raised a devolution matter; if it did, whether the UKSC should accept the reference for consideration; and, if it did consider it, whether the subject matter of the reference—which related to draft legislation to enable a referendum on Scottish independence—was within the legislative competence of the Scottish Parliament. The document also includes supporting commentary and questions from author Thomas Webb.
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The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill—A Reference by the Attorney General and the Advocate General for Scotland [2018] UKSC 64, Supreme Court (also known as Continuity Bill Reference)
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill—A Reference by the Attorney General and the Advocate General for Scotland [2018] UKSC 64, Supreme Court. This case is concerned with the competencies of the Scottish Parliament, and the nature of devolution in the UK more generally. The document also includes supporting commentary and questions from author Thomas Webb.
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Imperial Tobacco Ltd v The Lord Advocate (Scotland) [2012] UKSC 61, Supreme Court
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Imperial Tobacco Ltd v The Lord Advocate (Scotland) [2012] UKSC 61, Supreme Court. This case concerned the devolved legislative competence of the Scottish Parliament, the powers reserved to the Westminster Parliament under the Scotland Act 1998, and how these provisions should be interpreted. The statutory interpretation of constitutional legislation is also considered. The document also includes supporting commentary and questions from author Thomas Webb.
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R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, Supreme Court
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case note summarizes the facts and decision in R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, Supreme Court. This case concerned whether the government could rely on the prerogative power to issue a notification of the United Kingdom’s intention to secede from the European Union under Article 50 of the Treaty of the European Union, or whether parliamentary authorization was required. There is also a brief discussion of the Sewel Convention. The document also includes supporting commentary and questions from author Thomas Webb.
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R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, Supreme Court
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case note summarizes the facts and decision in R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, Supreme Court. This case concerned whether the government could rely on the prerogative power to issue a notification of the United Kingdom’s intention to secede from the European Union under Article 50 of the Treaty of the European Union, or whether parliamentary authorization was required. There is also a brief discussion of the Sewel Convention. The document also includes supporting commentary and questions from author Thomas Webb.
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Reference by the Attorney General and the Advocate General for Scotland—United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and European Charter of Local Self-Government (Incorporation) (Scotland) Bill [2021] UKSC 42, Supreme Court (also referred to as the Incorporation References Case)
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Reference by the Attorney General and the Advocate General for Scotland—United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and European Charter of Local Self-Government (Incorporation) (Scotland) Bill [2021] UKSC 42, Supreme Court. On its face, this case (also known as the Incorporate References case) concerns the two Bills of the Scottish Parliament which sought to incorporate two international treaties into Scots law. More significantly, this case—alongside the Continuity Bill Reference case—speaks to the nature of the devolution settlement, its democratic credentials, and the relationship between the UK Supreme Court, the devolved institutions, and the Westminster Parliament. The document also includes supporting commentary and questions from the author, Thomas Webb.
Chapter
The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill—A Reference by the Attorney General and the Advocate General for Scotland [2018] UKSC 64, Supreme Court (also known as Continuity Bill Reference)
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill—A Reference by the Attorney General and the Advocate General for Scotland [2018] UKSC 64, Supreme Court. This case is concerned with the competencies of the Scottish Parliament, and the nature of devolution in the UK more generally. The document also includes supporting commentary and questions from author Thomas Webb.
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41. Youth justice
Lesley McAra
This chapter explores the founding principles, operational functioning and impact of the institutions which have evolved across the four nations in the United Kingdom to deal with children and young people who come into conflict with the law. It takes as its principal empirical focus the shifting patterns of control that have emerged over the past twenty years—a period characterized by a persistent disjuncture between normative claims about youth justice, evolving policy discourse, and the impact of youth justice practices on the lives of young people. The chapter concludes by arguing that, unless there is better alignment between these dimensions, justice for children and young people cannot and will never be delivered.
