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Chapter

Cover The Changing Constitution

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.

Chapter

Cover Public Law

9. Devolution  

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.

Chapter

Cover The Changing Constitution

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.

Chapter

Cover Medical Law

14. Abortion  

This chapter examines the law on abortion, beginning with debates over the moral legitimacy of abortion. It then examines the current legal position, and considers how the Abortion Act 1967, as amended, works in practice, as well as considering the prospects for law reform. Finally, the chapter looks briefly at the regulation of abortion in Northern Ireland, Ireland, and the United States.

Chapter

Cover The English Legal System

1. The English Legal System  

Alisdair A. Gillespie and Siobhan Weare

This chapter provides an introduction to the English Legal System. Specifically, it explains the meaning of the terms ‘English’, ‘legal’, and ‘system’. It first provides an overview of the constituent parts of the United Kingdom of Great Britain and Northern Ireland, namely England, Wales, Scotland, and Northern Ireland. It describes the types of law that exist and attempts to define what law is. It then discusses the English legal system, which is based on common law and is an adversarial system.

Chapter

Cover English Legal System Concentrate

1. Introduction to the English Legal System  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. This introductory chapter provides an overview of the English legal system (ELS). The study of ELS involves the study of the legal system of both England and Wales; Scotland and Northern Ireland are subject to a separate, yet connected legal system. These four countries are subjected to the laws of the UK; however, each individual constituent has devolved powers allowing them to legislate in particular areas. Where a conflict between laws of the UK and laws of the constituent country arises, the UK law takes precedence. The effect of devolution from the UK to Scotland, Wales, and Northern Ireland does not affect this parliamentary supremacy. Indeed, it has been argued for some time that devolution of power has not gone far enough in allowing Scotland or Northern Ireland to govern themselves.

Chapter

Cover The English Legal System

1. The English Legal System  

This chapter provides an introduction to the English Legal System. Specifically, it explains the meaning of the terms ‘English’, ‘legal’, and ‘system’. It first provides an overview of the constituent parts of the United Kingdom of Great Britain and Northern Ireland, namely England, Wales, Scotland, and Northern Ireland. It describes the types of law that exist and attempts to define what law is. It then discusses the English legal system, which is based on common law and is an adversarial system.

Chapter

Cover Constitutional and Administrative Law

7. The structure of the United Kingdom and devolution  

This chapter discusses the structure of the UK and devolution. It first sketches the constitutional history of the UK, presenting a brief outline of events that led to its creation, that is, the union of England, Wales, Scotland, and Northern Ireland. The chapter then examines the issue of devolution, which has been particularly important to the people of Scotland and Wales. The key provisions of the devolution legislation enacted in 1998 and more recent legislative developments are reviewed. The chapter concludes by considering the agreements between the UK Government and the devolved administrations in Scotland, Wales, and Northern Ireland, in particular the Memorandum of Understanding, and the devolution provisions in the European Union (Withdrawal) Act 2018 which facilitated Brexit.

Chapter

Cover Public Law

6. Multilevel Governing Within the United Kingdom  

This chapter examines multilevel governing within the UK. It is organized around three levels of governing: national, regional, and local. For most of the twentieth century, Great Britain (England, Wales, and Scotland) formed a centralized political unit, with policymaking and law-making being led by the UK government and the UK Parliament. There was devolved government in Northern Ireland from 1922, but this was brought to an end by the UK government in 1972 amid mounting civil unrest and paramilitary violence. At the local level, there are more than 400 local authorities throughout the United Kingdom. These vary considerably in size, both in terms of their territorial area that they cover and their populations.

Chapter

Cover Essential Cases: Public Law

Re Finucane’s Application for Judicial Review [2019] UKSC 7, 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 Re Finucane’s Application for Judicial Review [2019] UKSC 7, UK Supreme Court. This case concerns first, the law relating to legitimate expectations, and second the requirements to establish an Article 2-compliant investigation into a death. The facts of the case are connected to the murder of Patrick Finucane by loyalist paramilitaries in Northern Ireland. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Essential Cases: Public Law

Re Finucane’s Application for Judicial Review [2019] UKSC 7, 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 Re Finucane’s Application for Judicial Review [2019] UKSC 7, Supreme Court. This case concerns first, the law relating to legitimate expectations, and second the requirements to establish an Article 2-compliant investigation into a death. The facts of the case are connected to the murder of Patrick Finucane by loyalist paramilitaries in Northern Ireland. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Complete Public Law

10. Devolution and Parliamentary Supremacy  

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. Devolution can be defined as the conferral of powers by a central governing institution on a regional or national governing body, without the central institution having to concede legislative supremacy. Such devolved powers can be administrative, executive, or legislative in nature. The process of devolving such powers to three of the UK’s four nations—England, Scotland, Wales, and Northern Ireland—was initiated by the passing of the Devolution Acts of 1998. This chapter begins by tracing the history of devolution and then discusses the ways that power can be devolved and the roles and powers of the Scottish Parliament, Welsh Assembly, and the Northern Ireland Assembly. It addresses the question of whether there should there be an English Parliament and, finally, examines the effects of devolution on parliamentary supremacy, as well as the effects the UK’s exit from the EU has had on the devolution settlement.

Chapter

Cover Cases and Materials on Constitutional and Administrative Law

8. Devolution  

This chapter focuses on devolution. The nature of the asymmetrical devolution of legislative and executive power to Scotland, Wales, and Northern Ireland is outlined, along with the position in England, with the ongoing change to these arrangements analysed. Some issues related to devolution which have been raised in the UK courts are then considered, with the chapter using a range of examples in Scotland, Wales and Northern Ireland to discuss the extent to which the devolution settlement is dynamic and continuing to change. It concludes by exploring the impact of Brexit on devolution in particular.

Chapter

Cover Public Law

6. Multilevel Governing Within the United Kingdom  

This chapter examines multilevel governing within the UK. It is organized around three levels of governing: national, regional, and local. For most of the twentieth century, mainland Great Britain (England, Wales, and Scotland) formed a centralized political unit, with policy-making and law-making being led by the UK government and the UK Parliament. There was devolved government in Northern Ireland from 1922, but this was ended by the UK government in 1972 amid mounting civil unrest and paramilitary violence. At the local level, there are 382 principal councils (unitary, upper, and second tier) throughout the United Kingdom. These vary considerably in size, both in terms of their territorial area that they cover and their populations. This chapter discusses how the introduction of devolved government in 1998 has altered the governance arrangements in Scotland, Wales, and Northern Ireland. It also examines how devolution affects the territorial constitution, (see Section 6.4), intergovernmental relations with Westminster (see Section 6.5), and the governance of England (see Section 6.6).

Chapter

Cover Public Law

22. Joining, Leaving, Transitioning: The UK’s Relationship With the European Union  

This chapter discusses the constitutionalization of EU law, which was led by the European Court of Justice from the 1960s using the twin principles of direct effect and supremacy. These principles were fully developed by the time the UK joined the European Community in 1973. The chapter will examine the UK’s accession process with particular reference to the European Communities Act 1972 before turning to the complex three-stage process of withdrawing from the EU. In that context, the 2016 referendum, Article 50 TEU, and the UK Supreme Court’s hearing of the English case of Miller and the Northern Irish case of McCord and Agnew, will be considered. In addition, the chapter will focus on the constitutional status of the Withdrawal Agreement, the transition period, and the constitutional importance of Northern Ireland for the current and future relationship between the UK and the EU.

Chapter

Cover Public Law

23. Joining and Leaving the European Union  

This chapter discusses the constitutionalization of EU law, which was led by the European Court of Justice from the 1960s using the twin principles of direct effect and supremacy. These principles were fully developed by the time the UK joined the European Community in 1973. The chapter also examines the UK’s accession process and the European Communities Act 1972 before turning to the process of withdrawing from the EU. In that context, the chapter will focus on the concept of ‘retained law’, the implications of withdrawal for Scotland and Northern Ireland, and the Internal Market Act 2020.

Chapter

Cover EU Law Directions

15. The relationship of the UK with the European Union and Brexit  

This chapter charts the long association of the UK with the EU. It considers all aspects of this relationship including pre-membership, entry to the EC (EU), the first UK EU referendum in 1975, and the relationship over five decades. It considers how EU law was granted supremacy over UK law and how the courts viewed this. The chapter looks at the period up to and beyond the 2016 UK EU referendum on exiting or remaining in the EU. The immediate consequences of the result and the negotiations which were concluded following this to enable the UK to legally exit the EU on 31 January 2020 are also considered. The role of Article 50 of the Treaty on European Union (TEU) is discussed and particular attention is focused on the Northern Ireland Protocol. The chapter concludes with a fairly detailed look at the 2020 EU–UK Trade and Cooperation Agreement.

Chapter

Cover Essential Cases: Public Law

Privacy International and others v Secretary of State for Foreign and Commonwealth Affairs and others [2021] EWCA Civ 330, Court of Appeal (also known as the Third Direction case)  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Privacy International and others v Secretary of State for Foreign and Commonwealth Affairs and others [2021] EWCA Civ 330, Court of Appeal. The case (also known as the Third Direction case) concerned whether the security service (MI5) was able to authorize its agents to commit criminality in the course of their work, and whether such authorization could grant immunity to said agents from criminal prosecution. The case has, in substance, been superseded by the passage of the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, but it nonetheless raises more fundamental questions about the relationship between the rule of law and national security. The document also includes supporting commentary and questions from author, Thomas Webb.

Chapter

Cover Essential Cases: Public Law

Privacy International and others v Secretary of State for Foreign and Commonwealth Affairs and others [2021] EWCA Civ 330, Court of Appeal (also known as the Third Direction case)  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Privacy International and others v Secretary of State for Foreign and Commonwealth Affairs and others [2021] EWCA Civ 330, Court of Appeal. The case (also known as the Third Direction case) concerned whether the security service (MI5) was able to authorize its agents to commit criminality in the course of their work, and whether such authorization could grant immunity to said agents from criminal prosecution. The case has, in substance, been superseded by the passage of the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, but it nonetheless raises more fundamental questions about the relationship between the rule of law and national security. The document also includes supporting commentary and questions from the author, Thomas Webb.

Chapter

Cover The Changing Constitution

2. Parliamentary Sovereignty in a Changing Constitutional Landscape  

Mark Elliott

Parliamentary sovereignty is often presented as the central principle of the United Kingdom’s constitution. In this sense, it might be thought to be a constant: a fixed point onto which we can lock, even when the constitution is otherwise in a state of flux. That the constitution presently is—and has for some time been— in a state of flux is hard to dispute. Over the last half-century or so, a number of highly significant developments have occurred, including the UK’s joining— and now leaving—the European Union; the enactment of the Human Rights Act 1998; the devolution of legislative and administrative authority to new institutions in Belfast, Cardiff and Edinburgh; and the increasing prominence accorded by the courts to the common law as a repository of fundamental constitutional rights and values. Each of these developments raises important questions about the doctrine of parliamentary sovereignty. The question might be thought of in terms of the doctrine’s capacity to withstand, or accommodate, developments that may, at least at first glance, appear to be in tension with it. Such an analysis seems to follow naturally if we are wedded to an orthodox, and perhaps simplistic, account of parliamentary sovereignty, according to which the concept is understood in unyielding and absolutist terms: as something that is brittle, and which must either stand or fall in the face of changing circumstances. Viewed from a different angle, however, the developments of recent years and decades might be perceived as an opportunity to think about parliamentary sovereignty in a different, and arguably more useful, way—by considering how the implications of this still-central concept are being shaped by the changing nature of the constitutional landscape within which it sits. That is the task with which this chapter is concerned.