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Cases and Materials on Constitutional and Administrative Law

Cases and Materials on Constitutional and Administrative Law (13th edn)

Brian Thompson, Michael Gordon, and Adam Tucker
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date: 26 June 2022

p. 3668. Devolutionfree

p. 3668. Devolutionfree

  • Brian Thompson, Brian ThompsonHonorary Senior Research Fellow, University of Liverpool
  • Michael GordonMichael GordonProfessor of Law, University of Liverpool
  •  and Adam TuckerAdam TuckerSenior Lecturer, University of Liverpool

Abstract

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.

Overview

In this chapter, we examine the topic of devolution, a central part of the constitutional reform programme implemented by the New Labour government after being elected to office in 1997. Legislative and executive power has been devolved to Scotland, Wales, and Northern Ireland, and we consider the background to devolution and outline the nature of this asymmetrical devolution settlement. We then explore some of the issues related to devolution which have been raised in the courts, and the extent to which the current devolution settlement is dynamic and continuing to change.

Section 1: Background to devolution

Of all of the constitutional reform implemented by New Labour following their election to government in 1997, devolution has perhaps had the greatest impact on both the UK constitution and the UK as a unitary nation state. By Acts of the Westminster Parliament, new institutions of government were created in Scotland, Wales, and Northern Ireland, with legislative and executive power devolved to those three constituent nations of the UK.

B. Hadfield, ‘Devolution: A National Conversation?’ in J. Jowell and D. Oliver (eds), The Changing Constitution
(7th edn, 2011), pp. 213–14

A consideration of the devolved UK constitution may be placed within the perspective of the UK as a unitary state; that is, one in which popular power flows to and political power flows from the centrally located Parliament and government in London. Devolution then is viewed as a means of the granting or ‘delegation’ of power from the centre to new regional institutions which then exercise whatever power is devolved for as long as it is devolved. Alternatively, a wider political and historical perspective would emphasise the centuries’ old formation of the UK through the various Acts of Union involving England, Wales, Scotland and (Northern) Ireland and their terms and conditions. Devolution then is viewed as an (incomplete) reversion to a status quo ante or, better, a dynamic renewal of an ‘ancien regime’. One value of the latter perspective is to accentuate the different histories, legal systems, educational and local government structures, cultures and traditions within the component parts of the UK and to negate an apparently dominant perspective of a constitutional and historico-political monolith composed mainly of the sovereign Westminster Parliament and central government based on support (at least until the 2010 general election) for one of only two nationally based political parties. Elements of both perspectives may be seen in the introduction and evolution of devolution since New Labour’s key legislation of 1998.

p. 367Thus there is more than one model of devolution and more than one set of principles to be served by it. Devolution for Scotland and Wales, for example, was presented by the Labour government of the late 1990s as a way of strengthening the Union through decentralization and subsidiarity and consequently of weakening any separatist tendencies. By contrast, devolution for Northern Ireland was part of both a peace and a political process accommodating internal cross-community and all-Ireland dimensions, the principle of parity of esteem across a wide range of factors, and with statutory provision made for the termination of the Union under certain specified conditions.

If it is accurate to state that devolution may serve a variety of constitutional and political purposes, whatever the similarities of the delivered statutory models, it is equally accurate to state that the founding principles cannot constrain its development. The actual introduction of devolution itself creates the probability of alternative political conceptions of its evolution which may run counter to its original design. These alternative conceptions may emerge from either the devolved institutions themselves or from the electorate. A central aspect of all the devolution packages was the requirement that the relevant nation’s electorate should endorse the government’s proposals before their enactment in legislation, thus adding the third element of popular sovereignty to the ‘equation for change’, alongside the Westminster Parliament and the devolved authorities. It is a possible, if not probable, hypothesis, that the development of devolution in real terms, as opposed to the formal conferment of powers, will be more influenced by the devolved authorities and their electorate than by Westminster.

P. Leyland, ‘The Multifaceted Constitutional Dynamics of UK Devolution’
(2011) 9(1) International Journal of Constitutional Law 251–3

The introduction of devolution under the new Labour government elected in 1997 was a radical constitutional change; however, it was not undertaken as part of a wider strategy of constitutional transformation. Rather, the package of measures contained in each devolution statute and subsequently ratified by referenda represented a distinct and pragmatic attempt to solve particular problems and aspirations associated with Scotland, Wales, and Northern Ireland. The schemes set in place, under the 1998 legislation, were meant to confer sufficient power to satisfy local political conditions while also addressing the dissatisfaction felt in the most far-flung parts of the United Kingdom with the centralizing tendencies that had been emanating from Westminster under the previous Conservative administration. In its effect, devolution has also contributed significantly to creating what has been termed ‘a multi-layered constitution,’ featuring a hollowing out of central government power, which has come to be located at several different levels and which is exercised in many different ways, adding greatly to the complexity of modern governance.

The discussion that follows demonstrates how devolution has been employed in the United Kingdom in a somewhat different way from federalism as a mechanism for organizing the division of powers and functions between national and subnational government. However, it is mainly argued here that it is incorrect to regard these changes as forming a new constitutional settlement. While it is true that the nature of the Constitution has been transformed in fundamental respects, and that certain local aspirations in Scotland, Wales, and Northern Ireland have been met, devolution has triggered a process of ongoing constitutional change at many levels. There was a lack of any overall reflection on the wider constitutional impact that would be caused by the extreme asymmetry in the way power has been distributed and exercised. For example, we will see that the Scottish government, now under the control of the Scottish National Party, only views the current arrangements as a staging post on the road to full independence. The Government of Wales Act (GWA) 2006 put the seal on a second phase of Welsh devolution by granting the devolved bodies enhanced lawmaking powers; however, this was also an acknowledgment of the limitations of the original scheme. Devolution in Northern Ireland has been plagued with difficulties, leading to suspension on three occasions up until its most recent and so far p. 368sustained relaunch in 2007. More generally, the funding arrangements for devolution under the Barnett formula, which have remained in place since its launch in 1999, have been called into question and may soon be replaced by an alternative method of revenue raising.

Perhaps the most serious constitutional imbalance has concerned the implications for Westminster and the lack of any equivalent form of government for England. In constitutional terms, it is as if each nation comprising the U.K. has embarked on a journey with an uncertain destination. Viewed from a rather different perspective, it will also become apparent that devolution has not only involved the introduction of innovative legislative and oversight processes in Scotland, Wales and Northern Ireland, which have so far proved more resistant to executive domination than their counterparts at Westminster, but it has also had unanticipated consequences here, as well. One such result … has concerned the continuing importance of Westminster legislation in the devolved areas of the United Kingdom. In view of the many changes in the form of devolution alluded to in this essay, it is suggested that not only is devolution itself a dynamic process but that it has also exerted a major influence on the development of the U.K. constitutional system.

NOTE: These extracts identify two key characteristics of the existing UK devolution settlement which will be under consideration in this chapter:

(1)

Devolution in the UK is asymmetrical, with power devolved to Scotland, Wales, and Northern Ireland to different extents. This is a consequence of the fact that, as Hadfield indicates, devolution to these three constituent parts of the UK was carried out for different reasons. As a result, the powers devolved could be tailored to the objectives which devolution sought to achieve with respect to each particular nation.

(2)

Devolution in the UK is dynamic, with each of the three devolution regimes having subsequently been altered from its original state, and further changes the subject of ongoing political debate.

Perhaps just as important as the nature of the existing devolution settlement is what it does not include: devolution of power to England, discussed in the following extract.

B. Hadfield, ‘Devolution, Westminster and the English Question’
[2005] Public Law 286, 291

This brings us to the second significant element of the present devolution arrangements [the first being asymmetry]—the omission of devolution to England. England is the only UK nation all of whose laws are made and all of whose policies are formulated by a UK body and never by a solely English-elected body. Consequently, and also, all of its laws are always made by a sovereign legislature. Given the nature, extent and continuity of Scottish devolution, these issues are particularly acute with regard to Scottish M.P.s and English affairs at Westminster. This has been vividly illustrated by the passing of legislation to introduce foundation hospitals and top-up students’ fees in England. Crucial votes carried overall in the House of Commons received the support of only a minority of English M.P.s. That, on its own, seems to be sufficient to highlight the English Question. If, however, (lack of) reciprocity is to be factored in also, then it is relevant to indicate that the Labour-dominated Scottish Executive has rejected both policies. The specific English Question to be considered here, therefore, is this: how acceptable is it, in the devolved United Kingdom, for M.P.s representing the devolved nations (particularly Scotland) to ‘vote’ on English affairs at Westminster? Here the word ‘vote’ is used loosely to cover three distinct processes: (a) to contribute to the debate in the House of Commons on an English matter; (b) actually to vote on the matter; and (c) to resolve the outcome of the vote against the wishes of the majority of English M.P.s. The last possibility may be predicted on the basis of certain factors—the overall balance between the parties; whether or not the government is dependent for its majority on the votes of Scottish M.P.s; the likelihood of a back-bench rebellion and so forth—but it cannot, of course, be definitely known in advance of a vote.

p. 369Notes:
1.

While power was not devolved directly to England as a nation, there were some notable developments under New Labour. The Greater London Authority Act 1999 established a London Assembly and a directly elected mayor for the city. Further, a referendum was held in the north-east of England in 2004 on whether an elected assembly should be established for that region—78 per cent of those voting rejected the notion, on a 48 per cent turnout. This overwhelming defeat signalled the end of New Labour’s attempts to devolve further power within England, although the Conservative–Liberal Democrat coalition encouraged other cities to alter their local government arrangements to introduce directly elected mayors. Few cities moved quickly to adopted this model—of the 12 largest cities in England, Liverpool and Leicester introduced directly elected mayors by resolution of their city councils; the remaining ten held referendums on the proposal in May 2012, with it being rejected in all with the sole exception of Bristol.

2.

The Coalition government nevertheless attempted to facilitate further devolution within England. The then Chancellor, George Osborne, led the development of the ‘Northern Powerhouse’ policy—designed to redress the economic imbalance between the North and South of England—beginning in 2014 with a deal for the devolution of a broad range of powers over (and funding for) transport, housing, policing, business support and skills, and health and social care to an elected mayor for the Greater Manchester Combined Authority, a model which brings together multiple local councils in new governance arrangements to make collective decisions. Similar deals to establish and empower Combined Authorities have been agreed for the Liverpool City Region, the Sheffield City Region, West Yorkshire, Cornwall, Tees Valley, the West Midlands, Cambridgeshire and Peterborough, and the West of England. Deals initially agreed for the North East, Norfolk and Suffolk, and Greater Lincolnshire collapsed when they were rejected in one or more constituent local authorities, and the election of a major for the Sheffield City Region was to be delayed from 2017 (the election year for the other Combined Authority mayors) to 2018 to allow an unlawful consultation over the boundaries of the area to be rerun. The Conservative government elected in 2015 affirmed its commitment to this programme of local devolution within England, reforming the statutory framework for such deals via the Cities and Local Government Devolution Act 2016. In many ways, this scheme of local devolution within England reflects the scheme of devolution to the nations of the UK more broadly: it is asymmetrical, with different powers and levels of funding agreed with different areas (and with many areas of England not covered by any such Combined Authority deal), and has been fast-moving and dynamic, with further powers agreed for devolution from central government to Combined Authorities after the initial deals (most notably in relation to Greater Manchester, the original and most far-reaching of all the agreed Combined Authorities, in terms of powers and funding).

There have, nevertheless, been questions raised about the ‘very significant lack’ of consultation with and engagement of the public when agreeing these deals, and whether negotiations between central and local government have been sufficiently transparent (see House of Commons Communities and Local Government Committee, Devolution: the Next Five Years and Beyond (HC 369 of 2015–16)). There are also concerns about whether the funding provided will be adequate, or represent the further devolution of cuts in public services to the local level. Additionally, there is debate about whether this truly constitutes ‘devolution’ (let alone ‘a devolution revolution’, as it was described by George Osborne in November 2015) given it may arguably be driven by economic imperatives—to boost growth and development outside London—rather than a constitutional desire to reshape the institutional architecture of the UK, or a political belief in the virtue of self-government. This uncertainty of motive is reflected to some extent in the Communities and Local Government Committee’s conclusion (para. 18):

We believe that the Government should set out the aims of its devolution policy more clearly, preferably in a way that would, over time, allow success to be measured. The Government needs a clear hierarchy for the many things it is trying to achieve through devolution—promoting local growth at minimum cost, achieving a better balanced economy, improving integration of public services, enhancing local freedom to experiment, bringing decision-making closer to local communities and enhancing the democratic process. It also needs to be clear how the forms of devolution it favours are intended to achieve them, while recognising that there may be a different balance and mix of objectives in different areas.

3.

The problems posed by the English Question (or ‘West Lothian Question’, after the then MP for West Lothian, Tam Dalyell, who raised the issue when devolution was under consideration by p. 370James Callaghan’s Labour government in 1977) have been the subject of much discussion. While the difficulties caused by this aspect of the existing asymmetrical devolution settlement—the lack of devolution of power to England—can be readily identified, it remains far from clear how they might be solved (if indeed a ‘solution’ is required). The independent ‘McKay Commission’ was announced by the government in January 2012 and tasked to consider these issues; it reported in March 2013.

Report of the Commission on the Consequences of Devolution for the House of Commons (‘The McKay Commission’)
March 2013, paras 1, 3–8, 12, 15–16, 19–20

Executive Summary

1. The Commission was asked to consider how the House of Commons might deal with legislation which affects only part of the United Kingdom, following the devolution of certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales.

3. The powers and institutional form of the devolved institutions in Northern Ireland, Scotland and Wales vary substantially and asymmetrically. Each now has wide-ranging legislative and executive responsibilities across many fields of domestic policy. The ‘West Lothian Question’ raises the situation that then arises when MPs from outside England could help determine laws that apply in England while MPs from England would have no reciprocal influence on laws outside England in policy fields for which the devolved institutions are now responsible.

4. Some see this as an anomaly which is unfair to people in England, requiring remedial action to give MPs in England a fuller or decisive, even unique, role in making laws for England in policy areas which are devolved outside England. Specifically it raises the possibility that a majority opinion among MPs from England on such laws could be outvoted by a UK-wide majority of all UK MPs. But it is extremely rare for this to happen. Since 1919, only in the short-lived parliaments of 1964–66 and February–October 1974 has the party or coalition forming the UK government not also enjoyed a majority in England.

5. The governing arrangements for England in the post-devolution era are emerging by default, a residual consequence of devolution elsewhere. While the UK Parliament is set to focus increasingly on England, its procedures for making laws for England have changed little post devolution, and do not differentiate between English and UK-wide matters.

6. Survey research on public attitudes in England reveals differences of interest that people in England perceive as distinct from the interests of other parts of the UK. Evidence suggests a significant level of grievance among the people of England, sparked by the perception that Scotland enjoys advantages relative to England under current governing arrangements, particularly in the distribution of public spending and economic benefit. There is a clear and enduring sense that England is materially disadvantaged relative to the other parts of the UK, especially Scotland.

7. In addition, there is a consistent message that the people of England do not think it right that MPs from Scotland should be allowed to vote in the House of Commons on laws that affect England only. The current institutional arrangements for making laws for England are seen fairly uniformly across England as wanting, and they need to be modified to establish some form of England-specific legislative process. More than 50% of respondents supported some form of England-specific procedure for making laws for England, and some 60% did not trust any UK Government ‘very much’ or ‘at all’ to pursue the interests of England. The West Lothian Question, then, has a strong negative resonance in the surveys. Although its salience in practice may be much reduced, respondents want a significant response to their concerns—a voice for England.

8.p. 371 None of the following potential solutions is a sustainable response:

Abolishing devolution is not on the political agenda.

Maintaining the status quo is a long-term risk.

Strengthening local government in England does not tackle the governance of England.

Federalism, both England-wide with an English parliament or with English regions, has compelling objections.

Electoral reform, including proportional representation and reduction in the number of MPs returned for seats outside England, is not realistic and fails to tackle the underlying issue.

A principle to inform a response

12. A principle common to the devolution arrangements for Northern Ireland, Scotland and Wales exists on which to base proposals for modifying the procedures of the House of Commons to mitigate the unfairness felt by people in England. The constitutional principle that should be adopted for England (and for England-and-Wales) is that:

decisions at the United Kingdom level with a separate and distinct effect for England (or for England-and-Wales) should normally be taken only with the consent of a majority of MPs for constituencies in England (or England-and-Wales).

15. MPs from outside England should not be prevented from voting on matters before Parliament. This would create different classes of MP and could provoke deadlock between the UK Government and the majority of MPs in England. The concerns of England should be met without provoking an adverse reaction outside England. MPs from all parts of the UK need to have the opportunity to participate in the adoption of legislation, whatever the limits of its territorial effect. Instead, MPs from England (or England-and-Wales) should have new or additional ways to assert their interests. But MPs from outside England would then continue to vote on all legislation but with prior knowledge of what the view from England is.

Notes:
1.

‘Legislative consent motions’ are considered later in this chapter in Section 2B at pp. 394–6: they are a process by which one of the devolved legislatures can consent to the UK Parliament legislating for a devolved nation on a devolved matter and are required, by convention, prior to such legislation being enacted.

2.

In 2015, the Conservative majority government elected subsequent to the publication of the McKay Commission’s report decided to introduce a scheme of English Votes for English Laws (‘EVEL’) through change to the Standing Orders of the House of Commons. The changed legislative process established an additional power of veto for MPs representing English constituencies, or English and Welsh constituencies (as appropriate), but did not remove the requirement that a majority of all MPs vote to approve an Act of Parliament; see Chapter 7, Section 1B(c) at pp. 352–4 for full details. In practice the EVEL process did not make a significant difference to whether legislation was passed or not—no ‘English only’ veto was ever exercised, and Gover and Kenny (‘Five Years of EVEL’, Constitution Unit Blog, 23 October 2020) noted that the ‘legislative grand committees’ in which the views of English MPs are obtained:

have not facilitated any meaningful ‘voice’ in practice. Since 2015 there have been 42 such consent stages, on 35 separate bills. Yet these have been almost entirely a formality: only on four bills did the stages last longer than 10 minutes. Convening these committees has thus added considerable additional bureaucracy and disruption to Commons proceedings, but with little tangible benefit for English representation.

Yet there was still the potential for the broader constitutional impact of EVEL on the Union to be significant. While noting the difficulty in reaching conclusions at an early stage, the House of Lords Constitution Committee, English Votes for English Laws (HL Paper 61 of 2016–17), observed, pp. 3–4:

p. 372

The public’s desire for England to have a voice and decision-making capacity equal to the devolved nations’ in relation to matters which affect only England is understandable. And there are, currently, no viable alternatives other than to provide that voice through the House of Commons. However, attempting to provide a separate voice for England through the membership and institutions of the UK Parliament carries risks. Parliament is a unifying body at the centre of the political union, where all citizens, regardless of where they live, have the same say in the laws and policies that govern them. Using the same institution to provide a separate and distinct role for England could risk undermining Parliament’s position as a UK, rather than English, institution—a position which is already under threat given the growth of distinct and separate political party systems and political discourse within each of the devolved nations. …

The Standing Orders relating to EVEL were suspended on 22 April 2020 as part of a package of measures changing parliamentary procedure during the coronavirus pandemic. EVEL was therefore entirely out of operation during a period of time when the differences between the UK government and the devolved governments were especially prominent, given public health policy is a devolved matter in Scotland, Wales and Northern Ireland. The UK government has had primary responsibility for public health policy in England only during the pandemic—there has, however, been intergovernmental cooperation (although ‘ministerial implementation groups’ including UK and devolved Ministers were introduced and then abandoned in June 2020), and major funding for key UK-wide economic policies like the Job Retention (or ‘furlough’) Scheme has come from the UK Treasury.

The suspension of EVEL during the pandemic was made permanent on 13 July 2021, when MPs voted to support the UK government’s proposal to end this experiment, and rescinded the Standing Orders establishing English votes on English laws.

Questions
1.

Is the existing asymmetrical devolution settlement unsatisfactory in so far as it fails to devolve any power to new institutions with responsibility for England as a whole? Or given that England dominates the UK in population terms—based on the 2011 census, 84 per cent of the UK population is English—is concern about the extent to which English interests fail to be represented in the UK institutions of government unjustified?

2.

Would the creation of an English Parliament and government undermine the authority of UK institutions? Was the extension of local devolution through Combined Authority deals, in combination with EVEL, a satisfactory alternative? Are there any other options to replace the now-abandoned EVEL process?

Section 2: The asymmetrical regimes

Devolution has resulted in the creation of new democratic institutions in Scotland, Wales, and Northern Ireland exercising legislative and executive power to differing extents. This has been achieved by Acts of the Westminster Parliament. In this section, we highlight selected provisions in this legislation which (a) create legislative and executive institutions; (b) devolve power, in particular law-making competence; and (c) offer some specific examples of the asymmetry at the core of the existing settlement(s).

A: Institutions

Scotland Act 1998

1. The Scottish Parliament

(1)

There shall be a Scottish Parliament.

(2)

One member of the Parliament shall be returned for each constituency (under the simple majority system) at an election held in the constituency.

(3)

p. 373 Members of the Parliament for each region shall be returned at a general election under the additional member system of proportional representation provided for in this Part and vacancies among such members shall be filled in accordance with this Part.

(4)

The validity of any proceedings of the Parliament is not affected by any vacancy in its membership.

(5)

Schedule 1 (which makes provision for the constituencies and regions for the purposes of this Act and the number of regional members) shall have effect.

44. The Scottish Government

(1)

There shall be a Scottish Government, whose members shall be—

(a)

the First Minister,

(b)

such Ministers as the First Minister may appoint under section 47, and

(c)

the Lord Advocate and the Solicitor General for Scotland.

(2)

The members of the Scottish Government are referred to collectively as the Scottish Ministers.

(3)

A person who holds a Ministerial office may not be appointed a member of the Scottish Government; and if a member of the Scottish Government is appointed to a Ministerial office he shall cease to hold office as a member of the Scottish Government.

(4)

In subsection (3), references to a member of the Scottish Government include a junior Scottish Minister and ‘Ministerial office’ has the same meaning as in section 2 of the House of Commons Disqualification Act 1975.

Notes:
1.

The Scotland Act 1998 originally referred to a ‘Scottish Executive’. This was amended by s. 12(2) (a) of the Scotland Act 2012, which substituted ‘Government’ for ‘Executive’, reflecting a change in terminology which had been adopted in practice by the Scottish National Party minority administration after its election to office in 2007.

2.

The First Minister is ‘appointed by Her Majesty from among the members of the Parliament and shall hold office at Her Majesty’s pleasure’, but is nominated for appointment by the Scottish Parliament (s. 46). The First Minister appoints Ministers from among the members of the Parliament ‘with the approval of Her Majesty’. But approval will not be sought for appointment of a Minister without the approval of the Parliament (s. 47). The First Minister may resign the office at any time, but ‘shall do so if the Parliament resolves that the Scottish Government no longer enjoys the confidence of the Parliament’ (s. 45).

3.

Prior to devolution, Scotland already had a judicial system which was largely separate from that of the rest of the UK, preserved in the Acts of Union 1707. Appeals from the Inner House of the Court of Session, Scotland’s highest civil court, can be heard in the UK Supreme Court. The High Court of Justiciary is Scotland’s supreme criminal court; appeals on criminal matters are not heard by the UK Supreme Court. The jurisdiction of the UK Supreme Court over devolution issues (transferred from the Judicial Committee of the Privy Council by s. 40(4)(b) of the Constitutional Reform Act 2005) has, however, complicated this state of affairs. For decisions of the High Court in Scotland as to the compatibility of Scots criminal law with the European Convention on Human Rights raise what can be understood to be devolution issues, and can thus be appealed to the UK Supreme Court. A controversial example of this can be seen in Cadder v HM Advocate [2010] UKSC 43, in which the Supreme Court held that, when prosecuting a criminal offence, the Crown’s reliance on admissions obtained from a detainee while being interviewed by police without access to legal advice was incompatible with his Art. 6 right to a fair trial. A second controversial case, which led to members of the Scottish Government publicly, and extensively, criticizing the Supreme Court for intervening in Scots criminal matters, was Fraser v HM Advocate [2011] UKSC 24, in which it had been held that non-disclosure of evidence had violated the right to a fair trial protected by Art. 6. The law in relation to devolution issues, compatibility with European Convention on Human Rights (ECHR) rights, and Scots criminal proceedings has subsequently been amended by ss 34–7 of the Scotland Act 2012, which creates a new procedure by which compatibility matters can be referred to the UK Supreme Court, while providing that such matters will not also be devolution issues, and preventing the Supreme Court from granting remedies after determining a compatibility issue, by requiring such decisions to be remitted to the High Court of Justiciary for consideration.

4.

p. 374 The institutions created by the Scotland Act 1998 are now recognized in that statute as ‘a permanent part of the UK’s constitutional arrangements’, as a result of amendments made by the Scotland Act 2016, s. 1. The newly established s. 63A of the Scotland Act 1998 signifies the commitment of the UK Parliament and government to the Scottish Parliament and government, and declares that these institutions cannot be abolished unless authorized in a referendum of the people of Scotland; on the development and legal status of this provision, which was subsequently replicated for Wales in the Wales Act 2017, see later in this chapter in Section 4A at p. 420.

Government of Wales Act 2006

1. The Senedd

(1)

There is to be a parliament for Wales to be known as Senedd Cymru or the Welsh Parliament (referred to in this Act as ‘the Senedd’).

(2)

The Senedd is to consist of–

(a)

one member for each Senedd constituency (referred to in this Act as ‘Senedd constituency members’), and

(b)

members for each Senedd electoral region (referred to in this Act as ‘Senedd regional members’).

(2A) Members of the Senedd are to be known by that name or as Aelodau o’r Senedd.

(3)

Members of the Senedd (referred to in this Act as ‘Senedd members’) are to be returned in accordance with the provision made by and under this Act for–

(a)

the holding of general elections of Senedd members (for the return of the entire Senedd), and

(b)

the filling of vacancies in Senedd seats.

(4)

The validity of any Senedd proceedings is not affected by any vacancy in its membership.

(5)

In this Act ‘Senedd proceedings’ means any proceedings of–

(a)

the Senedd,

(b)

committees of the Senedd, or

(c)

sub-committees of such committees.

45. Welsh Government

(1)

There is to be a Welsh Government, or Llywodraeth Cymru, whose members are–

(a)

the First Minister or Prif Weinidog (see sections 46 and 47),

(b)

the Welsh Ministers, or Gweini dogion Cymru, appointed under section 48,

(c)

the Counsel General to the Welsh Government or Cwnsler Cyffredinol i Lywodraeth Cymru (see section 49) (referred to in this Act as ‘the Counsel General’), and

(d)

the Deputy Welsh Ministers or Dirprwy Weinidogion Cymru (see section 50).

(2)

In this Act and in any other enactment or instrument the First Minister and the Welsh Ministers appointed under section 48 are referred to collectively as the Welsh Ministers.

Notes:
1.

Devolution of power to Wales was originally executed and governed by the Government of Wales Act 1998. Unlike the Scottish Parliament, the National Assembly for Wales (as it was known until 2020), did not initially possess the power to enact primary legislation, but was instead the recipient of powers previously exercised by UK government Ministers, including powers to make subordinate legislation relating to Wales. The 2006 Act, as will be seen later in this chapter in Section 2B at pp. 382–7, extended the legislative power of the Assembly significantly, and it was then substantially amended by the Wales Act 2017.

2.

p. 375 The office of First Minister for Wales and the Welsh Assembly Government were created by the 2006 Act; the Welsh Assembly Government was then renamed the Welsh Government by the Wales Act 2014, s. 4. Prior to this, the 1998 Act had created the post of Assembly First Secretary, who could appoint further Assembly Secretaries, and Assembly functions could be delegated to these office-holders or Assembly committees. The extension of the legislative power of the Assembly by the 2006 Act produced an institutional arrangement which more closely reflects that adopted in Scotland, with a clearer distinction between a legislature (now called the Senedd Cymru or Welsh Parliament) and an executive (the Welsh Government, led by the First Minister). As in relation to Scotland, the First Minister for Wales is appointed by the Queen, on the nomination of the Assembly (ss 46–7). The First Minister may appoint Welsh Ministers from among the members of the Parliament, again formally ‘with the approval of Her Majesty’ (s. 48). The National Assembly for Wales was renamed the Senedd Cymru or Welsh Parliament, by virtue of the Senedd and Elections (Wales) Act 2020, s. 2, using powers which had been conferred on the Welsh legislature in the Wales Act 2017, s. 9. Again, this brings the Welsh devolution arrrangements into closer alignment with Scotland, arguably reflecting the enhanced constitutional status of the Welsh legislature, while also creating a bilingual name which reflects the importance of the Welsh language in Wales.

Northern Ireland (Elections) Act 1998

1. The New Northern Ireland Assembly

(1)

There shall be an Assembly called the New Northern Ireland Assembly, for the purpose of taking part in preparations to give effect to the agreement reached at the multi-party talks on Northern Ireland set out in Command Paper 3883.

(2)

The Secretary of State may refer to the Assembly—

(a)

specific matters arising from that agreement, and

(b)

such other matters as he thinks fit.

(3)

The Assembly shall consist of 108 members.

(4)

The initial members shall be returned at an election for the constituencies in Northern Ireland which would return members to the Parliament of the United Kingdom if a general election were held on the date of the passing of this Act.

(5)

Each constituency shall return six members.

(6)

The Schedule to this Act (which makes supplementary provision about the Assembly) shall have effect.

NOTE: The Northern Ireland Assembly created in 1998 was ‘new’ because, unlike Scotland and Wales, there had been previous experience of devolution in Northern Ireland, with a Parliament of Northern Ireland having been created by the Government of Ireland Act 1920, and a previous Assembly established under the Northern Ireland Constitution Act 1973. The present Assembly was created in the aftermath of the Good Friday Agreement, signed on 10 April 1998 by the main Northern Irish political parties and the UK and Irish governments (referred to in the extract earlier as ‘Command Paper 3883’). The Good Friday Agreement made provision for the future governance of Northern Ireland and its terms, after being approved in referendums held in Northern Ireland and the Republic of Ireland, were given effect in the Northern Ireland Act 1998 (which also, by Sch. 15, repealed the Northern Ireland (Elections) Act 1998).

Northern Ireland Act 1998

4. Transferred, excepted and reserved matters

(5)

In this Act—

‘the Assembly’ means the New Northern Ireland Assembly, which after the appointed day shall be known as the Northern Ireland Assembly;

16A.p. 376 Appointment of First Minister, deputy First Minister and Northern Ireland Ministers following Assembly election

(1)

This section applies where an Assembly is elected under section 31 or 32.

(2)

All Northern Ireland Ministers shall cease to hold office.

(3)

Within a period of 14 days beginning with the first meeting of the Assembly–

(a)

the offices of First Minister and deputy First Minister shall be filled by applying subsections (4) to (7); and

(b)

the Ministerial offices to be held by Northern Ireland Ministers shall be filled by applying section 18(2) to (6).

(4)

The nominating officer of the largest political party of the largest political designation shall nominate a member of the Assembly to be the First Minister.

(5)

The nominating officer of the largest political party of the second largest political designation shall nominate a member of the Assembly to be the deputy First Minister.

(6)

If the persons nominated do not take up office within a period specified in standing orders, further nominations shall be made under subsections (4) and (5).

(7)

Subsections (4) to (6) shall be applied as many times as may be necessary to secure that the offices of First Minister and deputy First Minister are filled.

(8)

But no person may take up office as First Minister, deputy First Minister or Northern Ireland Minister by virtue of this section after the end of the period mentioned in subsection (3) (see further section 32(3)).

(9)

The persons nominated under subsections (4) and (5) shall not take up office until each of them has affirmed the terms of the pledge of office. …

(12)

This section shall be construed in accordance with, and is subject to, section 16C. …

16C. Sections 16A and 16B: supplementary

(3)

For the purposes of sections 16A and 16B and this section, a political party to which one or more members of the Assembly belong is to be taken—

(a)

to be of the political designation ‘Nationalist’ if, at the relevant time (see subsection (11)), more than half of the members of the Assembly who belonged to the party were designated Nationalists;

(b)

to be of the political designation ‘Unionist’ if, at the relevant time, more than half of the members of the Assembly who belonged to the party were designated Unionists;

(c)

otherwise, to be of the political designation ‘Other’.

(4)

For the purposes of sections 16A and 16B and this section—

(a)

the size of the political designation ‘Nationalist’ is to be taken to be equal to the number of members of the Assembly who, at the relevant time, were designated Nationalists;

(b)

the size of the political designation ‘Unionist’ is to be taken to be equal to the number of members of the Assembly who, at the relevant time, were designated Unionists;

(c)

the size of the political designation ‘Other’ is to be taken to be equal to the number of members of the Assembly who, at the relevant time, were neither designated Nationalists nor designated Unionists. …

17. Ministerial offices

(1)

The First Minister and the deputy First Minister acting jointly may at any time, and shall where subsection (2) applies, determine—

(a)

the number of Ministerial offices to be held by Northern Ireland Ministers; and

(b)

the functions to be exercisable by the holder of each such office.

(2)

p. 377 This subsection applies where provision is made by an Act of the Assembly for establishing a new Northern Ireland department or dissolving an existing one.

(3)

In making a determination under subsection (1), the First Minister and the deputy First Minister shall ensure that the functions exercisable by those in charge of the different Northern Ireland departments existing at the date of the determination are exercisable by the holders of different Ministerial offices.

(4)

The number of Ministerial offices shall not exceed 10 or such greater number as the Secretary of State may by order provide.

(5)

A determination under subsection (1) shall not have effect unless it is approved by a resolution of the Assembly passed with cross-community support.

20. The Executive Committee

(1)

There shall be an Executive Committee of each Assembly consisting of the First Minister, the deputy First Minister and the Northern Ireland Ministers.

(2)

The First Minister and the deputy First Minister shall be chairmen of the Committee ….

(4)

The Committee shall also have the function of discussing and agreeing upon—…

(b)

significant or controversial matters that the First Minister and deputy First Minister acting jointly have determined to be matters that should be considered by the Executive Committee.

Notes:
1.

These extracts are as amended by the Northern Ireland (Monitoring Commission etc.) Act 2003, the Northern Ireland (St Andrews Agreement) Act 2006, and the Northern Ireland (Stormont Agreement and Implementation Plan) Act 2016.

2.

A number of provisions relating to the legislative and executive institutions are specifically designed for the government of Northern Ireland: the provisions as to the appointment of the First Minister and Deputy First Minister (s. 16A); their joint determination of the Ministerial Offices which will exist, to a maximum of ten, and the functions which will be exercised (s. 17); the appointment of Ministers to those offices in accordance with a statutory ‘d’Hondt’ formula which seeks to fix the number of Ministers drawn from a party against the number of seats that party has won in the Assembly (s. 18); and the potential exclusion from government on a temporary basis of Ministers or parties not committed to non-violence (s. 30). The effect of these provisions is to require that the Executive Committee is cross-party, bringing together the parties designated as Nationalist and Unionist (s. 16C) to share the exercise of governmental power devolved to Northern Ireland—a crucial element in the process of uniting communities divided by political and religious conflict in the decades prior to devolution.

3.

There was no functioning Executive Committee between January 2017 and January 2020, following the resignation of Martin McGuinness as Deputy First Minister, in protest at the refusal of the First Minister, Arlene Foster, to resign over a scandal relating to major overpayments to participants in a Renewable Heat Incentive scheme. Foster had been the Minister in charge of the green energy scheme when it was set up in 2012, but the subsidies offered to businesses switching to environmentally friendly fuel sources were initially uncapped, leaving the programme nearly £500 million in deficit. The joint nature of the appointment of the First Minister and Deputy First Minister under the power-sharing devolution arrangements meant that Sinn Fein’s decision not to nominate a successor to McGuinness brought down the Executive. New elections were held in March 2017 which again returned the DUP and Sinn Fein as the largest unionist and nationalist parties respectively, yet no power-sharing arrangements could be agreed. This left Northern Ireland without functioning devolved government until new elections were held in December 2019, with a political deal reached between the parties for the restoration of government in January 2020.

4.

Direct rule by the UK government was not introduced in this three-year period without functioning devolution—instead senior civil servants in Northern Ireland continued to run the administration. This led to a number of legal challenges concerning whether major infrastructure decisions, for example, could be approved without a functioning Executive, given its statutory responsibility for taking significant and controversial decisions cutting across specific p. 378departmental responsibilities. In Re Buick [2018] NICA 26, a decision to grant planning permission for a major waste incinerator was held to be unlawful, and the court noted that ‘any decision which as a matter of convention or otherwise would normally go before the Minister for approval lies beyond the competence of a senior civil servant in the absence of a Minister’. This prompted legislative intervention from the UK Parliament, including the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018, which created specific powers for senior officials in Northern Ireland to exercise functions in the period without an Executive if ‘in the public interest’ to do so (s. 3), as well as passing powers over specified appointments to public office in Northern Ireland (including the Attorney General and senior police officers) to UK Ministers (ss 5–8). This approach to governance was therefore based on a devolved Civil Service operating in a framework sustained by the UK institutions—certainly not direct rule, but a more formal continuation of devolution still raising questions about the location and extent of democratic accountability.

5.

Since the restoration of devolution, the Executive Committee (Functions) Act (Northern Ireland) 2020 has amended s. 20 of the 1998 Act (extracted above) to provide that ‘Decisions may be made by the Department for Infrastructure or the Minister in charge of that Department in the exercise of any function under … the Planning Act (Northern Ireland) 2011 … without recourse to the Executive Committee’. In principle this appears to resolve for the future one of the issues raised by the unlawful decision to grant planning permission in Re Buick.

B: Legislative competence

Scotland Act 1998

28. Acts of the Scottish Parliament

(1)

Subject to section 29, the Parliament may make laws, to be known as Acts of the Scottish Parliament.

(2)

Proposed Acts of the Scottish Parliament shall be known as Bills; and a Bill shall become an Act of the Scottish Parliament when it has been passed by the Parliament and has received Royal Assent.

(3)

A Bill receives Royal Assent at the beginning of the day on which Letters Patent under the Scottish Seal signed with Her Majesty’s own hand signifying Her Assent are recorded in the Register of the Great Seal.

(4)

The date of Royal Assent shall be written on the Act of the Scottish Parliament by the Clerk, and shall form part of the Act.

(5)

The validity of an Act of the Scottish Parliament is not affected by any invalidity in the proceedings of the Parliament leading to its enactment.

(6)

Every Act of the Scottish Parliament shall be judicially noticed.

(7)

This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.

(8)

But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.

29. Legislative competence

(1)

An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.

(2)

A provision is outside that competence so far as any of the following paragraphs apply—

(a)

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,

(b)

it relates to reserved matters,

(c)

it is in breach of the restrictions in Schedule 4,

(d)

it is incompatible with any of the Convention rights or in breach of the restriction in section 30A(1),

(e)

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

(3)

p. 379 For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.

(4)

A provision which—

(a)

would otherwise not relate to reserved matters, but

(b)

makes modifications of Scots private law, or Scots criminal law, as it applies to reserved matters, is to be treated as relating to reserved matters unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise.

(5)

Subsection (1) is subject to section 30(6).

30. Legislative competence: supplementary

(1)

Schedule 5 (which defines reserved matters) shall have effect.

(2)

Her Majesty may by Order in Council make any modifications of Schedule 4 or 5 which She considers necessary or expedient. …

(5)

Subsection (6) applies where any alteration is made—

(a)

to the matters which are reserved matters, or

(b)

to Schedule 4,

(whether by virtue of the making, revocation or expiry of an Order in Council under this section or otherwise).

(6)

Where the effect of the alteration is that a provision of an Act of the Scottish Parliament ceases to be within the legislative competence of the Parliament, the provision does not for that reason cease to have effect (unless an enactment provides otherwise).

[The text of Section 30A is considered explicitly below at pp. 381–2]

31. Scrutiny of Bills before introduction

(1)

A person in charge of a Bill shall, on or before introduction of the Bill in the Parliament, state that in his view the provisions of the Bill would be within the legislative competence of the Parliament.

(2)

The Presiding Officer shall, on or before the introduction of a Bill in the Parliament, decide whether or not in his view the provisions of the Bill would be within the legislative competence of the Parliament and state his decision. …

(3)

The form of any statement, and the manner in which it is to be made, shall be determined under standing orders, and standing orders may provide for any statement to be published.

33. Scrutiny of Bills by the Supreme Court

(1)

The Advocate General, the Lord Advocate or the Attorney General may refer the question of whether a Bill or any provision of a Bill would be within the legislative competence of the Parliament to the Supreme Court for decision.

(2)

Subject to subsection (3), he may make a reference in relation to a Bill at any time during—

(a)

the period of four weeks beginning with the passing of the Bill, and

(b)

any period of four weeks beginning with any subsequent approval of the Bill in accordance with standing orders made by virtue of section 36(5).

Notes:
1.

The extracts reproduced earlier in this section are as amended by the Constitutional Reform Act 2005, the Scotland Acts 2012 and 2016, the EU (Withdrawal) Act 2018, and the EU (Withdrawal Agreement) Act 2020.

2.

p. 380 The power of the UK Parliament to legislate for Scotland is explicitly preserved (and as will be seen later in this section, similar provisions are included in the legislation applicable to Wales and Northern Ireland), which in principle ensures there can be no clash between the devolution settlement and the doctrine of parliamentary sovereignty. In practice, however, the power of the UK Parliament to repeal the Scotland Act 1998 unilaterally, and reverse the effects of devolution, must be understood to be severely limited. In particular, the fact that devolution of legislative and executive power to Scotland was approved by the Scottish electorate at a referendum provides direct democratic legitimacy to the devolved institutions (74.3 per cent of voters in favour of establishing a Scottish Parliament on a turnout of 60.4 per cent), making it near impossible in political terms for the UK Parliament to legislate to abolish the devolution settlement unless acting on an alternative democratic mandate derived from Scottish voters. This reality is now reflected in s. 63A of the Scotland Act 1998 (as amended by s. 1 of the Scotland Act 2016) which recognizes the ‘permanence’ of the Scottish Parliament and Government; see later in this chapter in Section 4A at p. 420.

3.

The ‘reserved powers’ model of legislative competence established in relation to Scotland is defined on an exclusionary basis. The Scottish Parliament has power to legislate, except in relation to those matters stated to be outside its competence: in particular, this includes legislation which violates the ECHR, and legislation which concerns a reserved matter. Matters which are reserved to the UK Parliament are set out in detail in Sch. 5 to the Scotland Act 1998; the following extracts provide an indication of some of the crucial topics outside the legislative competence of the Scottish Parliament.

Scotland Act 1998

Schedule 5 Reserved Matters

Part I General Reservations

The Constitution

Para 1 The following aspects of the constitution are reserved matters, that is—

(a)

the Crown, including succession to the Crown and a regency,

(b)

the Union of the Kingdoms of Scotland and England,

(c)

the Parliament of the United Kingdom,

(d)

the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal,

(e)

the continued existence of the Court of Session as a civil court of first instance and of appeal.

Political Parties …

Foreign Affairs etc. …

Public Service …

Defence …

Treason …

Part II Specific Reservations

Head A – Financial and Economic Matters

Para A1 Fiscal, economic and monetary policy

Para A2 The currency

Head B – Home Affairs

Para B1 Misuse of drugs

Para B2 Data Protection

Para B4 Firearms

p. 381Para B6 Immigration and nationality

Para B8 National security, interception of communications, official secrets and terrorism

Para B11 Extradition

Para B13 Access to information

Head C – Trade and Industry

Para C7 Consumer Protection

Para C8 Product standards, safety and liability

Para C9 Weights and measures

Head D – Energy …

Head E – Transport …

Head F – Social Security …

Head G – Regulation of the Professions …

Head H – Employment …

Head J – Health and Medicines …

Head K – Media and Culture …

Head L – Miscellaneous …

Para L1 Judicial remuneration

Para L2 Equal opportunities

Para L3 Control of weapons

Para L5 Time

Para L6 Outer space

Para L7 Antarctica

Notes:
1.

Within the broad categories above, specific matters are identified as being reserved to the Westminster Parliament. The reservations on the legislative power of the Scottish Parliament continue to change since the 1998 settlement. Most recently, the Scotland Act 2016 removed reservations in a range of areas, most notably in relation to significant policy areas like elections, welfare benefits, employment support, abortion rights, onshore petroleum exploration, and devolved further fiscal control over taxation and borrowing; see later in this chapter in Section 4A at pp. 419–20.

2.

Prior to Brexit, a further limit on the powers of the Scottish Parliament was a prohibition on legislating in violation of EU law. After Brexit this has been replaced with a much more complex set of arrangements in a new section 30A:

Legislative competence: restriction relating to retained EU law

(1)

An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, retained EU law so far as the modification is of a description specified in regulations made by a Minister of the Crown.

(2)

But subsection (1) does not apply to any modification so far as it would, immediately before IP completion day, have been within the legislative competence of the Parliament.

(3)

A Minister of the Crown must not lay for approval before each House of the Parliament of the United Kingdom a draft of a statutory instrument containing regulations under this section unless—

(a)

the Scottish Parliament has made a consent decision in relation to the laying of the draft, or

(b)

the 40 day period has ended without the Parliament having made such a decision.

(4)

For the purposes of subsection (3) a consent decision is—

(a)

a decision to agree a motion consenting to the laying of the draft,

(b)

a decision not to agree a motion consenting to the laying of the draft, or

(c)

a decision to agree a motion refusing to consent to the laying of the draft;

and a consent decision is made when the Parliament first makes a decision falling within any of paragraphs (a) to (c) (whether or not it subsequently makes another such decision).

(5)

p. 382 A Minister of the Crown who is proposing to lay a draft as mentioned in subsection (3) must—

(a)

provide a copy of the draft to the Scottish Ministers, and

(b)

inform the Presiding Officer that a copy has been so provided.

(6)

See also paragraph 6 of Schedule 7 (duty to make explanatory statement about regulations under this section including a duty to explain any decision to lay a draft without the consent of the Parliament).

(7)

No regulations may be made under this section after the end of the period of two years beginning with exit day.

(8)

Subsection (7) does not affect the continuation in force of regulations made under this section at or before the end of the period mentioned in that subsection.

(9)

Any regulations under this section which are in force at the end of the period of five years beginning with the time at which they came into force are revoked in their application to any Act of the Scottish Parliament which receives Royal Assent after the end of that period. …

Rather than devolved competence being automatically expanded following the end of the supremacy of EU law in the UK—with powers which were previously exercised by the EU becoming effectively exercisable in Scotland when they fall in devolved areas—s. 30A creates a system where the UK government may by Regulations impose new limits on devolved competence to prevent retained EU law being modified in specified areas. In principle, this is a fall-back power for the UK government if it wants to impose a UK-wide approach to retained EU law in a particular area, in the event that agreement cannot be obtained with the devolved administrations for ‘common frameworks’ or new legislation. While the consent of the Scottish Parliament must be sought for s. 30A Regulations, the UK government can nevertheless proceed to legislate if it is not obtained. The powers are, however, time-limited—new limits can be introduced using these powers for the first two years after the end of the transition period, and will expire after five years from the point when they were enacted. The UK government had not yet made any use of these powers to apply retained EU law restrictions as of May 2021.

3.

A final source of reservations relates to ‘protected enactments’, in accordance with Sch. 4 of the Scotland Act 1998. By para. 1, an ‘Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, any of the following provisions’, including Arts 4 and 6 of the Acts of Union 1706/7, the Human Rights Act 1998, the EU (Withdrawal) Act 2018, and the UK Internal Market Act 2020. Certain parts of the Scotland Act 1998 itself are also protected from modification (para. 3), as is the law on reserved matters (para. 2).

Government of Wales Act 2006

107. Acts of the Senedd

(1)

The Senedd may make laws, to be known as Acts of Senedd Cymru or Deddfau Senedd Cymru (referred to in this Act as ‘Acts of the Senedd’).

(2)

Proposed Acts of the Senedd are to be known as Bills; and a Bill becomes an Act of the Senedd when it has been passed by the Senedd and has received Royal Assent.

(3)

The validity of an Act of the Senedd is not affected by any invalidity in the Senedd proceedings leading to its enactment.

(4)

Every Act of the Senedd is to be judicially noticed.

(5)

This Part does not affect the power of the Parliament of the United Kingdom to make laws for Wales.

(6)

But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Senedd.

108A. Legislative competence

(1)

An Act of the Senedd is not law so far as any provision of the Act is outside the Senedd’s legislative competence.

(2)

A provision is outside that competence so far as any of the following paragraphs apply—

(a)

p. 383 it extends otherwise than only to England and Wales;

(b)

it applies otherwise than in relation to Wales or confers, imposes, modifies or removes (or gives power to confer, impose, modify or remove) functions exercisable otherwise than in relation to Wales;

(c)

it relates to reserved matters (see Schedule 7A);

(d)

it breaches any of the restrictions in Part 1 of Schedule 7B, having regard to any exception in Part 2 of that Schedule from those restrictions;

(e)

it is incompatible with the Convention rights or in breach of the restriction in section 109A(1).

(3)

But subsection (2)(b) does not apply to a provision that—

(a)

is ancillary to a provision of any Act of the Senedd or Senedd Measure or to a devolved provision of an Act of Parliament, and

(b)

has no greater effect otherwise than in relation to Wales, or in relation to functions exercisable otherwise than in relation to Wales, than is necessary to give effect to the purpose of that provision.

(4)

For this purpose, a provision of an Act of Parliament is ‘devolved’ if it would be within the Senedd’s legislative competence if it were contained in an Act of the Senedd (ignoring any requirement for consent or consultation imposed under paragraph 8, 10 or 11 of Schedule 7B or otherwise).

(4A)

References in subsections (2)(b) and (3) to Wales include, in relation to a relevant provision of an Act of the Senedd, the area of the Welsh zone beyond the seaward limit of the territorial sea. A provision of an Act of the Senedd is ‘relevant’ if it relates to fishing, fisheries or fish health.

(5)

In determining what is necessary for the purposes of subsection (3), any power to make laws other than that of the Senedd is disregarded.

(6)

The question whether a provision of an Act of the Senedd relates to a reserved matter is determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.

(7)

For the purposes of this Act a provision is ancillary to another provision if it—

(a)

provides for the enforcement of the other provision or is otherwise appropriate for making that provision effective, or

(b)

is otherwise incidental to, or consequential on, that provision.

109 Legislative competence: supplementary

(1)

Her Majesty may by Order in Council amend Schedule 7A or 7B.

(2)

An Order in Council under this section may make such modifications of—

(a)

any enactment (including any enactment comprised in or made under this Act) or prerogative instrument, or

(b)

any other instrument or document, as Her Majesty considers appropriate in connection with the provision made by the Order in Council.

(3)

An Order in Council under this section may make provision having retrospective effect. …

(5)

Any alteration of Schedule 7A or 7B, whether by virtue of the making, revocation or expiry of an Order in Council under this section or otherwise, does not (unless an enactment provides otherwise) affect–

(a)

the validity of an Act of the Senedd passed before the alteration takes effect, or

(b)

the previous or continuing operation of such an Act of the Senedd.

110 Introduction of Bills

(1)

A Bill may, subject to the standing orders, be introduced in the Senedd—

(a)

p. 384 by the First Minister, any Welsh Minister appointed under section 48 any Deputy Welsh Minister or the Counsel General, or

(b)

by any other Senedd member.

(2)

The person in charge of a Bill must, on or before the introduction of the Bill, state that, in that person’s view, its provisions would be within the Senedd’s legislative competence.

(3)

The Presiding Officer must, on or before the introduction of a Bill in the Senedd—

(a)

decide whether or not, in the view of the Presiding Officer, the provisions of the Bill would be within the Senedd’s legislative competence, and

(b)

state that decision. …

112 Scrutiny of Bills by Supreme Court (legislative competence)

(1)

The Counsel General or the Attorney General may refer the question whether a Bill, or any provision of a Bill, would be within the Senedd’s legislative competence to the Supreme Court for decision.

(2)

Subject to subsection (3), the Counsel General or the Attorney General may make a reference in relation to a Bill at any time during—

(a)

the period of four weeks beginning with the passing of the Bill, and

(b)

any period of four weeks beginning with any approval of the Bill in accordance with provision included in the standing orders in compliance with section 111(7). …

Notes:
1.

On enactment of the Government of Wales Act 2006, the Welsh Assembly (as it then was) did not initially possess the power to pass ‘Acts’. Instead, Part 3 of the 2006 Act initially permitted the Assembly to pass ‘Assembly Measures’, in accordance with ss 93–102. The authority to enact Assembly Measures was still a significant advance on the limited powers initially devolved to Wales under the Government of Wales Act 1998 (discussed earlier), for such Measures had the status of primary legislation. Yet for a Measure to be within the competence of the Assembly, it had to relate to a specific ‘matter’ within a broad ‘field’, with competence for such ‘matters’ transferred by specific Legislative Competence Orders made by the Crown in Council. In effect, the system meant that competence for the Assembly to legislate had to be approved in relation to the particular issue which was to be the subject of a Measure by the UK Parliament and government.

The 2006 Act provided by s. 103, however, for the Measures system to be replaced by a system for the creation of Assembly Acts (set out in Part 4 of the 2006 Act) if that was approved by the Welsh electorate at a referendum. This referendum was held on 3 March 2011, with a larger percentage of those voting approving the extension of the Assembly’s legislative power than had voted in favour of devolution initially being established in 1997 (in 2011, 63.5 per cent of voters elected to increase the power of the Assembly, as compared with the 50.3 per cent of voters who approved the creation of the Assembly in 1997—the turnout in 2011 was, however, considerably lower: only 35.2 per cent of registered voters took part, compared with 50.1 per cent of voters in 1997).

2.

Under this system, the competence of the Assembly to enact Acts no longer depended on specific Legislative Competence Orders. Instead, the Assembly had the power to legislate in the 20 broad ‘fields’, now re-designated as ‘subjects’, within which specific ‘matters’ had previously had to be located, including environment, health and health services, highways and transport, housing, and tourism. This approach to legislative competence, while more generous than that which existed under the Assembly Measures system, still differed from that in place in Scotland. Whereas the legislative competence of the Scottish Parliament is defined on an exclusionary basis (power to legislate is given in general, subject to specific reservations), the competence of the Assembly was defined on an inclusionary basis—the Assembly could only legislate in relation to those subjects explicitly stated to be within its competence, defined in Sch. 7 of the 2006 Act.

3.

However, yet another system of legislative competence (the fourth since 1998) has now been introduced by the Wales Act 2017, which amended the Government of Wales Act 2006 to shift the Welsh devolution system to one based on a reserved powers model. While in principle this reserved powers model now therefore resembles that in operation in Scotland, there is debate p. 385about whether in practice this scheme of legislative competence is similarly generous. The Welsh Assembly passed a legislative consent motion approving the Wales Bill on 17 January 2017, but the (then) First Minister Carwyn Jones had continuing reservations that it was ‘not possible to conclude that the reserved powers model, welcome though it is in theory, is fit for purpose in the long term’. In particular this was due to the potential difficulties caused by the UK government’s commitment to a common legal jurisdiction for England and Wales, which had a limiting effect on the extent to which Welsh legislation could diverge from the law in England in certain respects (discussed further later in the chapter).

4.

These subjects outside the legislative competence of the Welsh Parliament are set out in the following extract.

Government of Wales Act 2006

Schedule 7A – Reserved Matters

Part I – General Reservations

The Constitution

Para 1 The following aspects of the constitution are reserved matters, that is—

(a)

the Crown, including succession to the Crown and a regency,

(b)

the Union of the Kingdoms of Scotland and England,

(c)

the Parliament of the United Kingdom,

Political Parties …

Single Legal Jurisdiction of England and Wales …

Foreign Affairs etc. …

Public Service …

Defence …

Treason …

Part II – Specific Reservations

Head A – Financial and Economic Matters

Section A1 Fiscal, economic and monetary policy

Section A2 The currency

Head B – Home Affairs

Section B1 Elections

Section B2 Nationality and immigration

Section B3 National Security and official secrets

Section B4 Interception of communications, communications data and surveillance

Section B5 Crime, public order and policing

Exception – Powers of entry, search and seizure relating to the detection or investigation of an offence of a kind provision for the creation of which is within the Senedd’s legislative competence.

Head C – Trade and Industry

Section C6 Consumer Protection

Section C7 Product standards, safety and liability

Section C8 Weights and measures

Head D – Energy …

Head E – Transport …

Head F – Social Security, Child Support, Pensions and Compensation …

Head G – Professions …

Head H – Employment …

Head J – Health, Safety and Medicines …

p. 386Head K – Media, Culture and Sport …

Head L – Justice …

Section L1 The legal profession, legal services and claims management services

Section L2 Legal aid

Section L11 Prisons and offender management

Section L12 Family relationships and children

Head M – Land and Agricultural Assets …

Section M1 Registration of land

Section M3 Development and buildings

Head N – Miscellaneous

Schedule 7B – General Restrictions

Part I – General Restrictions

Para 3 Private Law

(1)

A provision of an Act of the Senedd cannot make modifications of, or confer power by subordinate legislation to make modifications of, the private law.

(2)

‘The private law’ means the law of contract, agency, bailment, tort, unjust enrichment and restitution, property, trusts and succession. …

(4)

Sub-paragraph (1) does not apply to a modification that has a purpose (other than modification of the private law) which does not relate to a reserved matter.

Para 4 Criminal Law

(1)

A provision of an Act of the Senedd cannot—

(a)

make modifications of, or confer power by subordinate legislation to make modifications of, an offence in a listed category;

(b)

create, or confer power by subordinate legislation to create, an offence in a listed category.

(2)

The listed categories of offences are—

(a)

treason and related offences;

(b)

homicide offences (including offences relating to suicide) and other offences against the person (including offences involving violence or threats of violence) that are triable only on indictment;

(c)

sexual offences (including offences relating to indecent or pornographic images);

(d)

offences of a kind dealt with by the Perjury Act 1911.

(3)

A provision of an Act of the Senedd cannot make modifications of, or confer power by subordinate legislation to make modifications of, the law about—

(a)

criminal responsibility and capacity,

(b)

the meaning of intention, recklessness, dishonesty and other mental elements of offences,

(c)

inchoate and secondary criminal liability, or

(d)

sentences and other orders and disposals in respect of defendants in criminal proceedings, or otherwise in respect of criminal conduct, and their effect and operation.

(4)

For the purposes of this paragraph, a modification of the law relating to defences to an offence is a modification of the offence.

(5)

This paragraph does not affect the reservation, by virtue of Schedule 7A, of the creation or modification of offences in relation to reserved matters. (See also paragraph 8 of that Schedule (single legal jurisdiction of England and Wales).)

p. 387Notes:
1.

While it is now a reserved powers model, the overall design and effect of the Welsh devolution scheme is such that the Welsh Parliament still has legislative competence which is more limited than that possessed by the Scottish Parliament. Due to the fact that Wales is part of a common legal jurisdiction with England (‘the law of England and Wales’, compared with ‘Scots Law’, which is a separate legal jurisdiction within the UK) there is a specific reservation relating to the single jurisdiction in Sch. 7A, and Sch. 7B contains specific restrictions on altering private or criminal law to ensure consistency between Wales and England. Matters such as policing and prisons are devolved to the Scottish Parliament, but reserved to the UK Parliament in relation to Wales. There are also concerns that the more expansive approach taken to making explicit reservations risks narrowing the scope of legislative competence—as Evans argues, some subjects on which the conferred powers model was previously ‘silent’ which might have related to a devolved matter, such as employment relations, have now been explicitly reserved; see G. Evans, ‘Devolution in Wales: From Assembly to Parliament’, UK Constitutional Law Blog (15 April 2020).

2.

In addition to these specific restrictions, the Welsh reserved powers model contains similar general constraints on legislative competence as discussed earlier in relation to Scotland, including in relation to the ECHR and specified protected enactments. After Brexit this also includes a restriction relating to retained EU law in s. 109A, which has replaced the earlier prohibition on legislating in contravention of EU law.

Northern Ireland Act 1998

4. Transferred, excepted and reserved matters.

(1)

In this Act—

excepted matter’ means any matter falling within a description specified in Schedule 2;

reserved matter’ means any matter falling within a description specified in Schedule 3;

transferred matter’ means any matter which is not an excepted or reserved matter.

(2)

If at any time after the appointed day it appears to the Secretary of State—

(a)

that any reserved matter should become a transferred matter; or

(b)

that any transferred matter should become a reserved matter, he may, subject to subsections (2A) to (3D), lay before Parliament the draft of an Order in Council amending Schedule 3 so that the matter ceases to be or, as the case may be, becomes a reserved matter with effect from such date as may be specified in the Order.

(3)

The Secretary of State shall not lay before Parliament under subsection (2) the draft of any other Order unless the Assembly has passed with cross-community support a resolution praying that the matter concerned should cease to be or, as the case may be, should become a reserved matter. …

(4)

If the draft of an Order laid before Parliament under subsection (2) is approved by resolution of each House of Parliament, the Secretary of State shall submit it to Her Majesty in Council and Her Majesty in Council may make the Order.

(5)

In this Act—

the Assembly’ means the New Northern Ireland Assembly, which after the appointed day shall be known as the Northern Ireland Assembly;

cross-community support’, in relation to a vote on any matter, means—

(a)

the support of a majority of the members voting, a majority of the designated Nationalists voting and a majority of the designated Unionists voting; or

(b)

the support of 60 per cent of the members voting, 40 per cent of the designated Nationalists voting and 40 per cent of the designated Unionists voting;

designated Nationalist’ means a member designated as a Nationalist in accordance with standing orders of the Assembly and ‘designated Unionist’ shall be construed accordingly.

5.p. 388 Acts of the Northern Ireland Assembly.

(1)

Subject to sections 6 to 8, the Assembly may make laws, to be known as Acts.

(2)

A Bill shall become an Act when it has been passed by the Assembly and has received Royal Assent.

(3)

A Bill receives Royal Assent at the beginning of the day on which Letters Patent under the Great Seal of Northern Ireland signed with Her Majesty’s own hand signifying Her Assent are notified to the Presiding Officer.

(4)

The date of Royal Assent shall be written on the Act by the Presiding Officer, and shall form part of the Act.

(5)

The validity of any proceedings leading to the enactment of an Act of the Assembly shall not be called into question in any legal proceedings.

(6)

This section does not affect the power of the Parliament of the United Kingdom to make laws for Northern Ireland, but an Act of the Assembly may modify any provision made by or under an Act of Parliament in so far as it is part of the law of Northern Ireland.

6. Legislative competence.

(1)

A provision of an Act is not law if it is outside the legislative competence of the Assembly.

(2)

A provision is outside that competence if any of the following paragraphs apply—

(a)

it would form part of the law of a country or territory other than Northern Ireland, or confer or remove functions exercisable otherwise than in or as regards Northern Ireland;

(b)

it deals with an excepted matter and is not ancillary to other provisions (whether in the Act or previously enacted) dealing with reserved or transferred matters;

(c)

it is incompatible with any of the Convention rights;

(d)

it is in breach of the restriction in section 6A(1);

(e)

it discriminates against any person or class of person on the ground of religious belief or political opinion;

(f)

it modifies an enactment in breach of section 7.

(3)

For the purposes of this Act, a provision is ancillary to other provisions if it is a provision—

(a)

which provides for the enforcement of those other provisions or is otherwise necessary or expedient for making those other provisions effective; or

(b)

which is otherwise incidental to, or consequential on, those provisions;

and references in this Act to provisions previously enacted are references to provisions contained in, or in any instrument made under, other Northern Ireland legislation or an Act of Parliament.

(4)

Her Majesty may by Order in Council specify functions which are to be treated, for such purposes of this Act as may be specified, as being, or as not being, functions which are exercisable in or as regards Northern Ireland.

(5)

No recommendation shall be made to Her Majesty to make an Order in Council under subsection (4) unless a draft of the Order has been laid before and approved by resolution of each House of Parliament. …

8. Consent of Secretary of State required in certain cases.

The consent of the Secretary of State shall be required in relation to a Bill which contains—

(a)

a provision which deals with an excepted matter and is ancillary to other provisions (whether in the Bill or previously enacted) dealing with reserved or transferred matters; or

(b)

a provision which deals with a reserved matter.

9. Scrutiny by Ministers.

(1)

A Minister in charge of a Bill shall, on or before introduction of it in the Assembly, make a statement to the effect that in his view the Bill would be within the legislative competence of the Assembly.

(2)

p. 389 The statement shall be in writing and shall be published in such manner as the Minister making the statement considers appropriate.

10. Scrutiny by Presiding Officer.

(1)

Standing orders shall ensure that a Bill is not introduced in the Assembly if the Presiding Officer decides that any provision of it would not be within the legislative competence of the Assembly.

(2)

Subject to subsection (3)—

(a)

the Presiding Officer shall consider a Bill both on its introduction and before the Assembly enters on its final stage; and

(b)

if he considers that the Bill contains—

(i)

any provision which deals with an excepted matter and is ancillary to other provisions (whether in the Bill or previously enacted) dealing with reserved or transferred matters; or

(ii)

any provision which deals with a reserved matter, he shall refer it to the Secretary of State; and

(c)

the Assembly shall not proceed with the Bill or, as the case may be, enter on its final stage unless—

(i)

the Secretary of State’s consent to the consideration of the Bill by the Assembly is signified; or

(ii)

The Assembly is informed that in his opinion the Bill does not contain any such provision as is mentioned in paragraph (b)(i) or (ii).

(3)

Subsection (2)(b) and (c) shall not apply—

(a)

where, in the opinion of the Presiding Officer, each provision of the Bill which deals with an excepted or reserved matter is ancillary to other provisions (whether in the Bill or previously enacted) dealing with transferred matters only; or

(b)

on the introduction of a Bill, where the Bill has been endorsed with a statement that the Secretary of State has consented to the Assembly considering the Bill.

11. Scrutiny by the Supreme Court.

(1)

The Advocate General for Northern Ireland or the Attorney General for Northern Ireland may refer the question of whether a provision of a Bill would be within the legislative competence of the Assembly to the Supreme Court for decision.

(2)

Subject to subsection (3), he may make a reference in relation to a provision of a Bill at any time during—

(a)

the period of four weeks beginning with the passing of the Bill; and

(b)

the period of four weeks beginning with any subsequent approval of the Bill in accordance with standing orders made by virtue of section 13(6).

(3)

If he notifies the Presiding Officer that he does not intend to make a reference in relation to a provision of a Bill, he shall not make such a reference unless, after the notification, the Bill is approved as mentioned in subsection (2)(b).

(4)

If the Supreme Court decides that any provision of a Bill would be within the legislative competence of the Assembly, its decision shall be taken as applying also to that provision if contained in the Act when enacted.

Notes:
1.

These extracts are as amended by the Justice (Northern Ireland) Act 2002, the Constitutional Reform Act 2005, the Northern Ireland (Miscellaneous Provisions) Act 2006, and the Northern Ireland (Miscellaneous Provisions) Act 2014.

2.

p. 390 The Northern Irish provisions regarding legislative competence contain a number of mechanisms also contained in the Scottish and Welsh devolution arrangements considered in the earlier extracts, in particular:

the need for a statement to be made by the person introducing the Bill that it would be within legislative competence;

the requirement that any Bill be scrutinized by the Presiding Officer to ascertain whether it is within legislative competence;

the possibility of references to the Supreme Court to consider whether proposed legislation is within legislative competence.

While there are broad similarities, the specific mechanisms applicable to the Northern Ireland Assembly differ to some extent, however, from those applicable in Scotland and Wales. In particular, there is an additional role for a UK Secretary of State, in consenting to certain kinds of Bill, and in determining whether legislation should be submitted for royal assent. In addition to an assessment as to whether it is within legislative competence, this can involve, in accordance with s. 14(5), a substantive assessment of the content of the legislation: if the Secretary of State considers a Bill would be ‘incompatible with any international obligations, with the interests of defence or national security or with the protection of public safety or public order’, or would ‘have an adverse effect on the operation of the single market in goods and services’ within the UK. In general, these mechanisms are specific to the devolved legislatures, and do not exist in relation to the legislative power of the sovereign UK Parliament—although comparable, but less extensive, statements of compatibility with ECHR rights are required from UK Ministers when legislation is introduced in the UK Parliament by s. 19 of the Human Rights Act 1998.

3.

The Northern Ireland Act 1998 provides yet another different model of legislative competence. Transferred matters fall within the competence of the Northern Ireland Assembly, excepted matters do not, reserved matters may be the subject of legislation with the consent of a UK government minister (‘the Secretary of State’). Transferred matters are defined as any matter which is not excepted or reserved, which is in this sense comparable with the Scottish exclusionary model of legislative competence. Reserved matters may become transferred matters if the necessary conditions are met, including attracting cross-community support (the particularly controversial example of the originally reserved matter of policing and justice powers being transferred will be considered later in this chapter in Section 2B at pp. 392–3). In substantive terms, legislation (as with Scotland and Wales) may not violate the ECHR or (after Brexit, by virtue of s. 6A) specified retained EU law, but a further substantive limit is introduced, preventing legislation which discriminates against people or groups on the grounds of religious belief or political opinion. Where the Scottish and Welsh devolution systems have further restrictions against modifying specific ‘protected enactments’, including the Human Rights Act 1998 and (now) the EU (Withdrawal) Act 2018, the Northern Ireland Act 1998 describes these as ‘entrenched enactments’, which still cannot be modified, by virtue of s. 7.

4.

The following extract highlights a number of the broad topics which are excepted and reserved matters in relation to the Assembly.

Northern Ireland Act 1998

Schedule 2 – Excepted Matters

Para 1 The Crown

Para 2 The Parliament of the United Kingdom

Para 3 International relations

Para 4 The defence of the realm

Para 5 Control of nuclear, biological and chemical weapons and other weapons of mass destruction

Para 6 Dignities and titles of honour

Para 7 Treason but not powers of arrest or criminal procedure

p. 391Para 8 Nationality; immigration

Para 9 Taxes or duties under any law applying to the United Kingdom as a whole

Para 9A Child Trust Funds

Para 9C The operation of the Small Charitable Donations Act 2012

Para 9D Bonuses under the Savings (Government Contributions) Act 2017

Para 10 National insurance contributions

Para 10A Tax credits

Para 10B Health in pregnancy grant, child benefit and guardian’s allowance

Para 10C The operation of the Childcare Payments Act 2014

Para 11 Remuneration of judges

Para 11A The Supreme Court

Para 12 Elections

Para 13 The subject-matter of the Political Parties, Elections and Referendums Act 2000

Para 14 Coinage, legal tender and bank notes

Para 15 The National Savings Bank

Para 16 The subject-matter of the Protection of Trading Interests Act 1980

Para 16A Regulation of the provision of subsidies which are or may be distortive or harmful by a public authority to persons supplying goods or services in the course of a business

Para 17 National security

Para 18 Nuclear energy and nuclear installations

Para 19 Regulation of sea fishing outside the Northern Ireland zone

Para 20 Regulation of activities in outer space

Para 20A Regulation of activities in Antarctica

Para 21 Any matter with which a provision of the Northern Ireland Constitution Act 1973, other than section 36(1)(c), solely or mainly deals

Para 21A The office and functions of the Advocate General for Northern Ireland

Para 22 Any matter with which specified provisions of this Act solely or mainly deals

Schedule 3 – Reserved Matters

Para 1 The conferral of functions in relation to Northern Ireland on any Minister of the Crown

Para 2 Property belonging to Her Majesty in right of the Crown or belonging to a department of the Government of the United Kingdom

Para 3 Navigation, including merchant shipping, but not harbours or inland waters

Para 4 Civil aviation but not aerodromes

Para 5 The foreshore and the sea bed and subsoil and their natural resources

p. 392Para 6 Domicile …

Para 10(1) The subject-matter of the Public Processions (Northern Ireland) Act 1998

Para 10(2) In relation to the maintenance of public order, the armed forces of the Crown …

Para 12(1) Items for the time being specified in Article 45(1) or (2) of the Firearms (Northern Ireland) Order 2004; and the subject-matter of Article 45(10) of that Order.

Para 12(2) The security of explosives, including—

(a)

the prevention of loss or theft of explosives,

(b)

the prevention of the use of explosives for wrongful purposes, and

(c)

the detection, identification and traceability of explosives.

This sub-paragraph does not include the security of fireworks, or the licensing of shotfirers, or the subject-matter of section 2 of the Explosives Act (Northern Ireland) 1970.

Para 13 Civil defence …

Para 28 Units of measurement and United Kingdom primary standards …

Para 34 Human genetics …

Para 37 Consumer safety in relation to goods …

NOTE: Devolution of responsibility for Policing and Justice has been an especially significant issue in the politics of devolution in Northern Ireland. As the Independent Commission on Policing in Northern Ireland (created in accordance with the Good Friday agreement) noted in its report in 1999, since being established in 1922 the Royal Ulster Constabulary (RUC) was ‘disproportionately Protestant and Unionist’, and thus had ‘been identified by one section of the population not primarily as upholders of the law but as defenders of the state’ (p. 2). The RUC was replaced by a reformed Police Service of Northern Ireland in 2001, but ongoing concern and further revelations as to the conduct of the police and other state security agencies during ‘the Troubles’ meant that this continued to be a controversial part of the peace process. This was reflected in Northern Ireland’s devolution legislation, which was amended by the Northern Ireland (Miscellaneous Provisions) Act 2006 to make specific provision as to how police and justice powers (then a reserved matter) could be transferred.

Northern Ireland Act 1998
4. …

(2A)

The Secretary of State shall not lay before Parliament under subsection (2) the draft of an Order amending Schedule 3 so that a policing and justice matter ceases to be a reserved matter unless–

(a)

a motion for a resolution praying that the matter should cease to be a reserved matter is tabled by the First Minister and the deputy First Minister acting jointly; and

(b)

the resolution is passed by the Assembly with the support of a majority of the members voting on the motion, a majority of the designated Nationalists voting and a majority of the designated Unionists voting.

Devolution in Northern Ireland was suspended a number of times between 2000 and 2002 due to concerns about the decommissioning of weapons by the IRA, and the Northern Ireland Assembly was then suspended again for what would ultimately be p. 393almost five years on 14 October 2002. An agreement reached at St Andrews on 13 October 2006 paved the way for the restoration of devolution, and indicated that efforts would be made to request the devolution of police and criminal justice powers from the UK government by May 2008. This target was not met, but agreement was ultimately reached in 2010.

Agreement at Hillsborough Castle
5 February 2010, paras 1–2, 4–5

Section 1 Policing and Justice

Devolution timetable

1. Following community consultation the First Minister and deputy First Minister will table jointly a resolution for a cross-community vote in the Assembly on 9 March. Following affirmation of the resolution they will support all necessary steps in the Assembly to ensure devolution of powers by the 12 April. The Government will set out publicly the Parliamentary schedule for the related transfer orders required to effect devolution. Policing and justice powers will be devolved on that day.

The Department of Justice – Model

2. The Assembly’s Department of Justice Bill, which completed its passage in December, establishes the new Department of Justice and sets out the arrangements for the appointment of the Justice Minister. It provides that there will be a single Justice Minister in charge of the Department of Justice which will be responsible for devolved policing and justice policy and legislation. The Justice Minister will be elected by a cross community vote in the Assembly following a nomination by any MLA.

Independence of Judiciary and Chief Constable

4. We believe that the independence of the judiciary is essential in a democratic society which supports the rule of law. It is of paramount importance that the judicial function remains independent of Government and immune from any partisan or political interest. Public confidence requires that judicial decisions are taken in a fair, impartial, objective and consistent manner. This confidence can only be maintained if judges are able to act with independence.

5. As part of the devolved policing arrangements the Chief Constable will be operationally responsible for directing and controlling the police. The PSNI will have operational responsibility for policing, and for implementing the policies and objectives set by the Department of Justice and the Policing Board.

Implementing the Hillsborough Castle Agreement, a Department of Justice was established, to which a range of executive functions were transferred by the Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 (SI 2010/976). The Northern Ireland Act 1998 (Amendment of Schedule 3) Order 2010 (SI 2010/977) was also enacted to change specified policing and justice functions from reserved matters to transferred matters. This competence has been exercised by the Northern Ireland Assembly to enact the Justice Act (Northern Ireland) 2011 (which, among other things, makes provision for the establishment of Policing and Community Safety Partnerships) and the Criminal Justice (Northern Ireland) Act 2013. The Alliance Party leader David Ford held the position of Justice Minister—elected on the basis of cross-community support—from 2010 to 2016, followed by the election of the Independent Unionist Claire Sugden to the office in May 2016. The office returned to the Alliance Party under the new leader Naomi Long upon the restoration of devolution in January 2020 (following the three-year absence of a functioning executive).

Questions
1.

Are the differences in institutions and legislative competence between Scotland, Wales, and Northern Ireland justifiable?

2.

p. 394 Is the asymmetrical nature of the devolution settlements established in Scotland, Wales, and Northern Ireland beneficial, in so far as it offers the flexibility to create institutions, and devolve power, which can be tailored to the differing circumstances of each of these three nations? Or is it problematic, in so far as it makes the entire devolution settlement more difficult to navigate and understand from a UK perspective?

3.

Would a uniform model of devolution—establishing identical institutions with identical competences in each of the nations—be preferable? Would such a ‘federal’ model of devolution have implications for England?

4.

Are there any aspects of the devolution settlements which should be extended to the UK political institutions? In particular, could the general mechanisms designed to ensure that Bills are within the competence of each devolved legislature be applied to the UK Parliament? Would such mechanisms challenge the doctrine of parliamentary sovereignty?

To ensure that the sovereignty of Parliament is preserved, the devolution statutes affirm that the power of the UK Parliament to legislate for Scotland, Wales, and Northern Ireland on devolved or transferred matters remains unaffected. By convention, however, the Westminster Parliament will not legislate in relation to devolved matters without the consent of the devolved legislature. This is commonly known as the ‘Sewel convention’, for when the Scotland Bill was being debated in the House of Lords, Lord Sewel announced on behalf of the government (HL Deb, Vol. 592, col. 791, 21 July 1998) that the government:

would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament.

Such a convention also governed legislation by Westminster for former dependent territories which had become independent members of the Commonwealth (see the preamble to and s. 4 of the Statute of Westminster 1931). The convention is now formally recognized in a Memorandum of Understanding, a more recent version of which was agreed and published in September 2012, although essentially reiterating principles established in Cm 5240, published in December 2001.

Memorandum of Understanding and Supplementary Agreements
September 2012, paras 1–2, 14–15

Between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee

Presented to Parliament by Command of Her Majesty and presented to the Scottish Parliament and the Northern Ireland Assembly and laid before the National Assembly for Wales.

Part I: Memorandum of Understanding

Introduction

1. This Memorandum sets out the understanding of, on the one hand, the United Kingdom Government, and on the other, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee (‘the devolved administrations’) of the principles that will underlie relations between them. The UK Government represents the UK interest in matters which are not devolved in Scotland, Wales or Northern Ireland. Policy responsibility for these non-devolved areas is within the exclusive responsibility of the relevant UK Ministers and Departments. It is recognised by these Ministers and Departments that, within the UK Government, the Secretaries of State for Scotland, Wales and Northern Ireland are responsible for ensuring that the interests of those parts of the UK in non-devolved matters are properly represented and considered. Other UK Ministers and their departments represent the interests of England in all matters.

2.p. 395 This Memorandum is a statement of political intent, and should not be interpreted as a binding agreement. It does not create legal obligations between the parties. …

Parliamentary Business

14. The United Kingdom Parliament retains authority to legislate on any issue, whether devolved or not. It is ultimately for Parliament to decide what use to make of that power. However, the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government.

15. The United Kingdom Parliament retains the absolute right to debate, enquire into or make representations about devolved matters. It is ultimately for Parliament to decide what use to make of that power, but the UK Government will encourage the UK Parliament to bear in mind the primary responsibility of devolved legislatures and administrations in these fields and to recognise that it is a consequence of Parliament’s decision to devolve certain matters that Parliament itself will in future be more restricted in its field of operation.

Notes:
1.

The Sewel convention provides an interesting example of the flexibility and variation of constitutional conventions in the UK, a topic discussed generally in Chapter 5. It is written and was deliberately created—indeed, as the quote from Lord Sewel demonstrates, its creation was envisaged even before the devolution legislation had actually been enacted—rather than being unwritten and having evolved over time. It is also a convention of considerable importance, which conditions the effect of the formal legal power retained by the UK Parliament, and thus demonstrates the central role that conventions can play in the UK constitution. Indeed, the use of ‘legislative consent motions’ in the Scottish and Welsh Parliaments and the Assembly in Northern Ireland, to indicate their consent in the circumstances where the Sewel convention applies, may have been more frequent than was initially anticipated (although there is debate about what initial expectations actually were, as noted in the Scottish Parliament Procedures Committee Report which led to the formalization of procedures associated with legislative consent motions; SP Paper 428, 7th Report of 2005, 43–5). It is now clear that the convention is not an exceptional mechanism, but a central part of regulating the relationships between the UK government and the devolved institutions, approving the enactment of over 200 Acts since devolution was established.

2.

There is, nevertheless, debate about the extent of this convention—in practice, legislative consent has been sought from the devolved institutions not simply in relation to substantive legislation by the UK Parliament which relates to devolved matters (as envisaged in the Sewel convention as originally set out), but also in relation to changes to the scope of the devolution arrangements themselves. This broader formulation of the scope of the convention is captured in Devolution Guidance Note 10 (DGN 10) on Post-Devolution Legislation Affecting Scotland (2005), one of a number of official documents published by the UK Cabinet Office on working arrangements between the UK government and devolved administrations. According to DGN 10, para. 4.III, Bills subject to the convention requiring the consent of the Scottish Parliament are those which:

contain provisions applying to Scotland and which are for devolved purposes, or which alter the legislative competence of the Parliament or the executive competence of the Scottish Ministers.

This may generate uncertainty as to the application of the convention in relation to significant constitutional change for which responsibility is explicitly reserved to the UK Parliament—in particular, withdrawal from the EU or the ECHR—but which would inevitably affect the legislative competence of the Scottish Parliament, in so far as existing limits on law-making power, defined by reference to these bodies of supranational legal rules in s. 29(2)(d) of the Scotland Act 1998, would need to be removed. See further C. McCorkindale, ‘Echo Chamber: the 2015 General Election at Holyrood—a Word on Sewel’, Scottish Constitutional Futures Forum Blog (13 May 2015).

3.

p. 396 The operation of the Sewel convention in normal circumstances—although apparently only in its original, narrower formulation, as concerning UK legislation relating to devolved matters—has now been ‘recognized’ in statute; see s. 28(8) of the Scotland Act 1998, at p. 378 earlier in this section. This sub-section was introduced by s. 1 of the Scotland Act 2016, and raises questions about whether the convention has now obtained legal force. Such claims were, however, unanimously rejected by the Supreme Court when considering the domestic constitutional requirements for beginning the process of negotiating UK withdrawal from the EU in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 [148]:

[B]y such provisions, the UK Parliament is not seeking to convert the Sewel Convention into a rule which can be interpreted, let alone enforced, by the courts; rather, it is recognising the convention for what it is, namely a political convention, and is effectively declaring that it is a permanent feature of the relevant devolution settlement.

4.

The Sewel convention has been breached by the UK government on three occasions during process of delivering Brexit: first, the Scottish Parliament voted to refuse consent to the EU (Withdrawal) Act 2018, although the UK Parliament proceeded to enact the legislation anyway, with the consent of the Welsh Parliament (the Northern Ireland Assembly was not sitting at this time). Secondly, the Scottish Parliament, Welsh Parliament, and the Northern Ireland Assembly voted to refuse consent to the EU (Withdrawal Agreement) Act 2020. Thirdly, both the Scottish and Welsh Parliaments again voted to refuse consent to the UK Internal Market Act 2020 (no formal consent motion was introduced in the Northern Ireland Assembly but it had previously voted in favour of a separate motion to reject the Bill). The common concern in all three instances was that the legislation gave the UK government and Parliament power to intervene in devolved matters in areas previously covered by EU law. That the UK Parliament and government have breached the convention in such circumstances was described by the Lords Constitution Committee (HL Paper 151 of 2019–21) as ‘regrettable’ and ‘risks destabilising the devolution arrangements’ (para. 50).

Question

Is the Sewel convention an effective way of ensuring the UK institutions do not alter the parameters of the devolution settlement without the consent of the devolved legislatures? If the Sewel convention were enacted as a fully enforceable legal rule, would that make it better adhered to? Or would the UK Parliament be likely to include a set of legal exceptions to cover a situation like Brexit, and to retain its ultimate legislative sovereignty?

C: Key specific examples of asymmetry

Scotland Act 1998

80C Power to set Scottish rates for Scottish taxpayers

(1)

The Scottish Parliament may by resolution (a ‘Scottish rate resolution’) set the Scottish basic rate, and any other rates, for the purposes of section 11A of the Income Tax Act 2007 (which provides for the income of Scottish taxpayers which is charged at those rates). …

(2A)

Where a Scottish rate resolution sets more than one rate it must also set limits or make other provision to enable it to be ascertained, for the purposes of that section, which rates apply in relation to a Scottish taxpayer.

(2B)

But a Scottish rate resolution may not provide for different rates to apply in relation to different types of income.

(2C)

In this Chapter a ‘Scottish rate’ means a rate set by a Scottish rate resolution.

(3)

A Scottish rate resolution applies—

(a)

for only one tax year, and

(b)

for the whole of that year.

(5)

p. 397 A Scottish rate must be a whole number or half a whole number, or zero.

(6)

A Scottish rate resolution—

(a)

must specify the tax year for which it applies,

(b)

must be made before the start of that tax year, and

(c)

must not be made more than 12 months before the start of that year.

(7)

If a Scottish rate resolution is cancelled before the start of the tax year for which it is to apply—

(a)

the Income Tax Acts have effect for that year as if the resolution had never been passed, and

(b)

the resolution may be replaced by another Scottish rate resolution.

(8)

Standing orders must provide that only a member of the Scottish Government may move a motion for a Scottish rate resolution.

Notes:
1.

This provision was initially inserted into the 1998 Act by the Scotland Act 2012, replacing and extending a previous power to vary (within limits) the basic rate of income tax applicable in Scotland, with a new power to establish a Scottish rate of income tax, representing a common baseline by reference to which a basic, higher, and additional rate would then be calculated (and so ensuring the gaps between those varying tax bands would be the same as in the rest of the UK). The creation of a power to vary the basic rate of income tax had been explicitly approved by the Scottish electorate, with a specific question as to this included in the referendum held prior to the establishment of devolution in Scotland. This section was amended again by the Scotland Act 2016, s. 13, further extending the powers of the Scottish Parliament in relation to income tax: rather than simply establishing one basic Scottish income tax rate, from 2017/18 the Scottish Parliament had the power to set all rates and tax band thresholds. The Scottish National Party government has used this power to maintain higher income tax rates in Scotland in the upper tax bands, in contrast with the current policy of the UK government which has been to raise the threshold at which higher tax rates apply.

2.

The Scotland Act 2012 further extended the financial powers of the Scottish Parliament in other ways, amending the 1998 Act to empower the devolved legislature to replace UK stamp duty with a Scottish tax on transactions involving interests in land (s. 80I), replace UK landfill tax with a Scottish tax on disposals of waste to landfill (s. 80K), and establishing a power to devolve responsibility for further existing taxes and create new devolved taxes (s. 80B). The Scotland Act 2012 also contained provisions to extend the borrowing powers of Scottish Ministers, and in particular, permit borrowing of up to £2.2 billion to fund capital expenditure. These extended fiscal powers for the Scottish Government came into effect between April 2015 and April 2016, after Scotland voted to remain part of the UK. Yet there has been further devolution of fiscal power under the Scotland Act 2016, enacted in the aftermath of the close referendum decision, to provide an even more extensive devolution settlement for Scotland. These powers include the assignment to Scotland of funds from VAT (s. 64A of the amended 1998 Act), devolution of the tax on carriage of air passengers (s. 80L), and increasing the borrowing limit for capital expenditure to £3 billion (s. 67A). Significant powers in relation to welfare benefits and employment support are also being devolved under the Scotland Act 2016, ss 22–31, including a power to create new benefits in devolved areas (s. 28). These powers were exercised to enact the Social Security (Scotland) Act 2018 covering a range of forms of assistance.

3.

The fiscal powers devolved to Scotland are considerably greater than those devolved to Northern Ireland or Wales. The Scotland Act 2012, which made provision for their further extension was enacted in response to the recommendations of the Calman Commission, which reported in June 2009. The Commission had been tasked with conducting a review of the experience of devolution in Scotland, making recommendations which would strengthen the existing settlement and (as its terms of reference indicated) ‘continue to secure the position of Scotland within the United Kingdom’. The further devolution of powers mapped out in the Scotland Act 2016 was also a response to the independence referendum, implementing recommendations made by the Smith Commission, which was established in 2014 to develop proposals to give effect to ‘the vow’ made by the main UK political parties in the days prior to the vote. This vow was a commitment to strengthen Scottish devolution if the people of Scotland voted to remain part of the UK, p. 398a result which was delivered by 55 per cent to 45 per cent in the September 2014 referendum; see later in this chapter in Section 4A at pp. 418–20. The extension of fiscal powers to Scotland has also provided a template for extension of fiscal powers to Northern Ireland and Wales; see later in this chapter in Section 4B at pp. 422–3.

Government of Wales Act 2006

78 The Welsh language

(1)

The Welsh Ministers must adopt a strategy (‘the Welsh language strategy’) setting out how they propose to promote and facilitate the use of the Welsh language. …

(4)

The Welsh Ministers–

(a)

must keep under review the Welsh language strategy, and

(b)

may from time to time adopt a new strategy or scheme or revise it.

(5)

Before adopting or revising a strategy, the Welsh Ministers must consult such persons as they consider appropriate.

(6)

The Welsh Ministers must publish the Welsh language strategy when they first adopt it and—

(a)

if they adopt a new strategy they must publish it, and

(b)

if they revise the Welsh language strategy (rather than adopting a new strategy or scheme) they must publish either the revisions or the strategy as revised (as they consider appropriate).

(7)

If the Welsh Ministers publish a strategy, or revisions, under subsection (6) they must lay a copy of the strategy, or revisions, before the Senedd.

(8)

After each financial year the Welsh Ministers must publish a report of how the proposals set out in the Welsh language strategy were implemented in that financial year and how effective their implementation has been in promoting and facilitating the use of the Welsh language and must lay a copy of the report before the Senedd.

(9)

For each financial year, the Welsh Ministers must publish a plan setting out how they will implement the proposals set out in the Welsh language strategy during that year.

(10)

The plan must be published as soon as reasonably practicable before the commencement of the financial year to which it relates.

NOTE: This extract is as amended by the Welsh Language (Wales) Measure 2011 and the Welsh Language (Wales) Measure 2011 (Consequential Provisions) Order 2016 (SI 2016/409). This specific provision requiring the promotion and facilitation of the use of the Welsh language by the Welsh Government demonstrates how important cultural differences can be reflected, and protected, in an asymmetrical devolution settlement. The amendment of the provision in the 2006 Act by Welsh legislation demonstrates the flexibility of the devolved arrangements, where many (although not all) of the provisions in the foundational statutes are open to amendment by the institutions they establish. The amendment of this provision—in particular, removing references to a Welsh language scheme—reflects the fact that far more extensive protection of the Welsh language is contained in devolved legislation: the Welsh Language (Wales) Measure 2011, among other things, gives official status to the Welsh language in Wales, including requiring that the language be treated no less favourably than English, and imposing duties to comply with standards of conduct relating to its use in the delivery of public services.

Northern Ireland Act 1998

1. Status of Northern Ireland

(1)

It is hereby declared that Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purposes of this section in accordance with Schedule 1.

(2)

p. 399 But if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty’s Government in the United Kingdom and the Government of Ireland.

Schedule 1

Polls for the Purpose of Section 1

1.

The Secretary of State may by order direct the holding of a poll for the purposes of section 1 on a date specified in the order.

2.

Subject to paragraph 3, the Secretary of State shall exercise the power under paragraph 1 if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.

3.

The Secretary of State shall not make an order under paragraph 1 earlier than seven years after the holding of a previous poll under this Schedule.

4.—

(1)

An order under this Schedule directing the holding of a poll shall specify—

(a)

the persons entitled to vote; and

(b)

the question or questions to be asked.

(2)

An order—

(a)

may include any other provision about the poll which the Secretary of State thinks expedient (including the creation of criminal offences); and

(b)

may apply (with or without modification) any provision of, or made under, any enactment

Notes:
1.

This provision gives effect to a key aspect of the Good Friday Agreement, and repeats a commitment contained in previous legislation regarding devolution to Northern Ireland (see in particular the Northern Ireland Constitution Act 1973, s. 1, and the Ireland Act 1949, s. 1(2), although the latter makes reference to the consent of the Parliament of Northern Ireland, whereas the former is more closely related to the 1998 Act in so far as it makes departure from the UK conditional upon a majority vote in a referendum). The provision is the only one in the current devolution settlement which puts in place a standing process for a nation to cease to be part of the UK, although as will be seen later in this chapter in Section 4A at pp. 418–19, specific (but temporary) provision was made for a referendum to be held on Scottish independence.

2.

The implications of this provision were considered in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, in which one argument considered on appeal from Northern Ireland was whether beginning negotiations to withdraw from the EU without the consent of the people of Northern Ireland (who had voted to remain in the referendum on EU membership) would impede the operation of s. 1 of the 1998 Act. While acknowledging the significance of the provision, the Supreme Court rejected this argument:

In our view, this important provision, which arose out of the Belfast Agreement, gave the people of Northern Ireland the right to determine whether to remain part of the United Kingdom or to become part of a united Ireland. It neither regulated any other change in the constitutional status of Northern Ireland nor required the consent of a majority of the people of Northern Ireland to the withdrawal of the United Kingdom from the European Union. Contrary to the submission of Mr Lavery QC for Mr McCord, this section cannot support any legitimate expectation to that effect.

3.

A recent case sought to establish whether the Secretary of State was required to develop and publish a policy on the circumstances in which a referendum under s. 1 would be held. In Raymond McCord’s Application: Border Poll [2020] NICA 23 the Court of Appeal in Northern Ireland held there was no need for the Secretary of State to publish a policy regarding the exercise of this p. 400discretion; instead the court emphasized ‘the constitutional value of flexibility’ and the need to preserve ‘political judgment in the context of different and unpredictable events’ [94]. It was therefore rational for the Secretary of State not to adopt a policy because these decisions ‘are not amenable to an enduring policy which would bind the respondent now and in the future as to how the flexible and politically sensitive powers are to be exercised’. [92]

Section 3: Devolution issues in the UK courts

Devolution to Scotland, Wales, and Northern Ireland has raised a number of legal issues in the UK courts. As we have seen earlier in this chapter in Section 2A at pp. 378–94, the UK Supreme Court has jurisdiction to hear appeals on devolution matters. In this section, we will consider a number of issues which are of broad relevance to all three devolution regimes, despite their asymmetry, and which may have a wider impact on the UK constitution as a whole. In particular, we will look at (a) the interpretation of the devolution Acts, (b) judicial review of legislation made by the devolved institutions, and (c) references to the Supreme Court as to whether Bills are within legislative competence.

A: Interpretation of the Devolution Acts

How are the Acts of the Westminster Parliament which established devolution in Scotland, Wales, and Northern Ireland to be interpreted? Does their constitutional significance mean that they must be interpreted in a way which differs from ‘ordinary’ Acts of Parliament?

Robinson v Secretary of State for Northern Ireland
[2002] UKHL 32, [2002] N.I. 390, House of Lords

Robinson, a member of the Democratic Unionist Party, sought to challenge the validity of the election of a First Minister and Deputy First Minister for Northern Ireland. By s. 16(8) of the Northern Ireland Act 1998, election to these offices was to take place within a six-week period. If the offices were not filled within this period, the Secretary of State for Northern Ireland was, by s. 32(3), to name a date for new elections to be held. A First Minister and Deputy First Minister having been elected outside of this six-week period, the Secretary of State announced that the next election would occur in approximately 18 months’ time, on the date already set for the next election by the Northern Ireland Act 1998. Robinson argued that the Assembly lacked the power to elect a First Minister and Deputy First Minister outside the six-week period, and that fresh elections should be called imminently.

LORD BINGHAM (with whom LORDS HOFFMANN and MILLETT agreed):

10. The 1998 Act, as already noted, was passed to implement the Belfast Agreement, which was itself reached, after much travail, in an attempt to end decades of bloodshed and centuries of antagonism. The solution was seen to lie in participation by the unionist and nationalist communities in shared political institutions, without precluding (see section 1 of the Act) a popular decision at some time in the future on the ultimate political status of Northern Ireland. If these shared institutions were to deliver the benefits which their progenitors intended, they had to have time to operate and take root.

11. The 1998 Act does not set out all the constitutional provisions applicable to Northern Ireland, but it is in effect a constitution. So to categorise the Act is not to relieve the courts of their duty to interpret the constitutional provisions in issue. But the provisions should, consistently with the language used, be interpreted generously and purposively, bearing in mind the values which the constitutional p. 401provisions are intended to embody. Mr Larkin submitted that the resolution of political problems by resort to the vote of the people in a free election lies at the heart of any democracy and that this democratic principle is one embodied in this constitution. He is of course correct. Sections 32(1) and (3) expressly contemplate such elections as a means of resolving political impasses. But elections held with undue frequency are not necessarily productive. While elections may produce solutions they can also deepen divisions. Nor is the democratic ideal the only constitutional ideal which this constitution should be understood to embody. It is in general desirable that the government should be carried on, that there be no governmental vacuum. And this constitution is also seeking to promote the values referred to in the preceding paragraph.

12. It would no doubt be possible, in theory at least, to devise a constitution in which all political contingencies would be the subject of predetermined mechanistic rules to be applied as and when the particular contingency arose. But such an approach would not be consistent with ordinary constitutional practice in Britain. There are of course certain fixed rules, such as those governing the maximum duration of parliaments or the period for which the House of Lords may delay the passage of legislation. But matters of potentially great importance are left to the judgment either of political leaders (whether and when to seek a dissolution, for instance) or, even if to a diminished extent, of the crown (whether to grant a dissolution). Where constitutional arrangements retain scope for the exercise of political judgment they permit a flexible response to differing and unpredictable events in a way which the application of strict rules would preclude.

LORD HOFFMANN:

33. Mr Larkin QC, in the course of his admirable argument for the appellant, politely but firmly reminded your Lordships that your function was to construe and apply the language of Parliament and not merely to choose what might appear on political grounds to be the most convenient solution. It is not for this House, in its judicial capacity, to say that new elections in Northern Ireland would be politically inexpedient. Mr Larkin cited Herbert Wechsler’s famous Holmes Lecture, Towards Neutral Principles of Constitutional Law ((1959) 73 Harvard LR 1). My Lords, I unreservedly accept those principles. A judicial decision must, as Professor Wechsler said (at p. 19) rest on ‘reasons that in their generality and their neutrality transcend any immediate result that is involved.’ But I think that the construction which I favour satisfies those requirements. The long title of the Act is ‘to make new provision for the government of Northern Ireland for the purpose of implementing the agreement reached at multi-party talks on Northern Ireland …’. According to established principles of interpretation, the Act must be construed against the background of the political situation in Northern Ireland and the principles laid down by the Belfast Agreement for a new start. These facts and documents form part of the admissible background for the construction of the Act just as much as the Revolution, the Convention and the Federalist Papers are the background to construing the Constitution of the United States.

34. Mr Larkin said that the respondents’ position was undemocratic: it denied the electorate of Northern Ireland the right to elect a new Assembly which was granted to them by the Act. But that of course begs the question, which is whether the Act requires an immediate election or not. On the construction which I have adopted, the question of when the election should be held will be a matter for the Secretary of State and will be informed by his political judgment as to the likelihood of the Assembly being able to elect the Ministers. But that does not mean that your Lordships are making a political decision. Your Lordships are not expressing any views on whether holding an election immediately after 6 November 2001 would have been politically expedient or not. That was a matter for the Secretary of State.

LORD HUTTON (dissenting, with LORD HOBHOUSE):

47. On 6 November 2001 the Northern Ireland Assembly held a further election for the offices of First Minister and deputy First Minister. On this occasion, following the re-designation as unionists of a number of members of the Assembly who had previously been designated neither unionists nor p. 402nationalists, the two candidates, Mr Trimble and Mr Durkan, did receive the required number of votes and were elected as First Minister and deputy First Minister respectively and have acted in that capacity since that date. It is the validity of that election which is at issue in the present proceedings.

51. The principal argument advanced on behalf of the appellant is that section 16(8) requires the election to fill the vacant offices of First Minister and deputy First Minister to take place within the specified period of six weeks, and if the offices are not filled by election within that period section 32(3) imposes a duty on the Secretary of State to propose a date for the poll for the election of the next Assembly, and it is implicit in that duty that he must propose an early poll. The appellant submits that it is clear from the express provisions of the 1998 Act that an election of a First Minister and a deputy First Minister after the expiration of the period of six weeks specified in section 16(8) is invalid and void.

54. My Lords, despite the attractiveness of the respondents’ argument based on the purpose of the Belfast Agreement, I have come to the conclusion that the appeal should succeed. The Northern Ireland Assembly is a body created by a Westminster statute and it has no powers other than those given to it by statute. Section 16(1) and section 16(8) expressly require that the election of the First Minister and deputy First Minster shall take place within a period of six weeks beginning either with the first meeting of the Assembly or, if the offices become vacant at any time, within a period of six weeks beginning with the time of the vacancy. Therefore once the period of six weeks has expired the Assembly has no express power under the Act to elect the First Minister and deputy First Minister. Does the Assembly then have an implied power to elect a First Minister and deputy First Minister outside the six weeks’ period? Where a statute gives power to a statutory body to perform a certain act within a specified period the normal rule is that the body has no power to perform that act outside the period, and I see nothing in the provisions of the Act pointing to a different conclusion.

59. In my opinion the wording of section 32(3) read in conjunction with the other subsections of section 32 makes it clear that Parliament intended that if there was not a successful election within the six weeks’ period, the Secretary of State would fix an early date for the poll. What has happened in this case, where the Secretary of State has fixed the date as being the date when a poll would have taken place under section 31 on the normal expiration of the life of the Assembly, appears to be a procedure which is contrived and artificial, particularly as the side note to section 32 refers to ‘Extraordinary elections’ but the Secretary of State has proposed the date on which an ordinary election for the Assembly would take place under section 31. …

61. In considering the extent to which the purpose of the 1998 Act to implement the Belfast Agreement can affect the interpretation of section 16 and section 32 I think it is necessary to bear in mind that the Belfast Agreement was drafted in a spirit of hope that the cross-community institutions of government which it proposed would succeed. Whilst the Agreement contains a final section containing provisions for review by the British and Irish Governments in consultation with the parties in the Assembly if difficulties arise across the range of institutions, the Agreement contains no express provision stating what would happen if cross-community government was not established or did not continue. But Parliament had to provide for this contingency and it did so by the provisions of section 16(1), 16(8) and section 32. Parliament has laid down a procedure to be followed in the event of the Assembly resolving that it should be dissolved or failing to elect a First Minister or deputy First Minister within the specified period of six weeks, and whilst those sections continue in force unamended I consider that the objective of the Belfast Agreement cannot operate to alter the meaning of their words.

Appeal dismissed.

NOTE: The House of Lords in Robinson was divided as to the manner in which the Northern Ireland Act 1998 should be interpreted. For Lord Bingham and the majority, it was in effect a constitution which ought to be interpreted generously in light of its purpose (to establish power-sharing p. 403government in Northern Ireland), whereas for Lord Hutton and the minority, the provisions were to be interpreted literally, and applied as such. To do otherwise would be to extend the powers of the devolved institutions beyond those which they had been given by the sovereign UK Parliament. There has been much debate about the implications of the Robinson case, and whether it requires all devolution legislation to be interpreted generously and purposively, as will be seen in the following extracts. It is worth noting the aftermath of the decision in Robinson: the Northern Ireland Assembly was suspended 11 months after the election, which the House of Lords had held to be lawful, of David Trimble and Mark Durkan as First Minister and Deputy First Minister respectively. Power was eventually restored in May 2007 following an agreement between the Democratic Unionist Party and Sinn Fein to form a government. We might therefore doubt whether the expansive interpretation of the Northern Ireland Act 1998 in Robinson was successful in providing a shortcut to the resumption of devolution without underlying political issues being addressed.

Imperial Tobacco Limited v The Lord Advocate (Scotland)
[2012] CSIH 9, Inner House of the Court of Session, [2012] UKSC 61, Supreme Court

This case concerned a challenge to ss 1 and 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010, which sought to restrict the display and retailing of tobacco products in specified circumstances. It was argued that the 2010 Act was outside the legislative competence of the Scottish Parliament. A submission was advanced that how the Scotland Act 1998 was to be interpreted would be significant, given it possessed a constitutional status. This argument was addressed in the Inner House of the Court of Session, and rejected by Lord Reed.

LORD REED:

69 [That there is no singular approach to constitutional interpretation] was made clear in Boyce v The Queen [2005] 1 AC 400, a case which concerned the Constitution of Barbados. As Lord Hoffmann, giving the judgment of the majority of the Board of the Privy Council, explained at para 28, the object of the interpretation of a constitutional provision is to arrive at its true meaning. That may call for a generous interpretation, or it may not, depending on the terms of the provision and the context which is relevant to the interpretation of its terms. The same can be said of the interpretation of statutory provisions, which in modern practice is based upon a purposive approach and the construction of statutes as ‘always speaking’ (see e.g. R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687).

70 Lord Bingham’s remarks in the case of Robinson are not inconsistent with this approach. In order to interpret a provision purposively, it is necessary first to identify the relevant purpose. Once that has been done, it may (as in Robinson) or may not be necessary to adopt a generous construction so as not to defeat the purpose. As Lord Bingham noted, such a construction must in any event be consistent with the language used.

71 The Scotland Act is not a constitution, but an Act of Parliament. There are material differences. The context of the devolution of legislative and executive power within the United Kingdom is evidently different from that of establishing a constitution for an independent state such as Jamaica or Barbados, or a British overseas territory such as Bermuda. In form, the Scotland Act does not resemble the fundamental rights provisions of a constitution: its provisions are dense and detailed. The Scotland Act can also be amended more easily than a constitution: a factor which is relevant, since the difficulty of amending a constitution is often a reason for concluding that it was intended to be given a flexible interpretation. Although the UK Government’s stated policy on legislation concerning devolved matters … known colloquially as the Sewel Convention, may impose a political restriction upon Parliament’s ability to amend the Scotland Act unilaterally, there have nevertheless been many amendments made to the Act. They include amendments to Schedules 4 and 5, which can be effected under section 30 by Order in Council. A Bill designed to effect more substantial amendments is currently in the course of its passage through Parliament.

72p. 404 A factor which appears to me to be of greater significance to the interpretation of the Scotland Act is that it established new constitutional arrangements which were intended to be stable and workable. The provisions defining the legislative competence of the Scottish Parliament, in particular, must have been intended, as Lord Walker observed in Martin v Most 2010 SC (UKSC) 40 at para 52, to create a rational and coherent scheme. In construing the provisions in issue in the present case, I have proceeded with these aims in mind. Beyond that, however, the interpretation of any specific provision will depend upon the language used, and the context which is relevant to understanding the meaning of that language.

On appeal to the Supreme Court, this question of the interpretation of the Scotland Act 1998 was addressed by Lord Hope (with whom Lord Walker, Lady Hale, Lord Kerr, and Lord Sumption agreed).

LORD HOPE:

The interpretation issue

10 Much of the discussion in the Court of Session was devoted to the question whether a different approach should be taken to the interpretation of the 1998 Act from that applicable to other statutes because it was said to be a constitutional instrument. I do not think that it is necessary to dwell on that issue at length at this stage. The Dean of Faculty accepted that the object was to arrive at the true meaning of the statute. Its content might influence the approach to be taken, but assertions about its constitutional nature were not in point. He acknowledged that the exercise to be undertaken was in essence no different from that which was applicable in the case of any other United Kingdom statute.

11 Mr Mure QC for the Lord Advocate and the Advocate General were, however, not entirely at one as to the approach that should be adopted. For the Lord Advocate it was stressed that a construction should be avoided which would render the endowment of plenary law-making powers on the Scottish Parliament futile. The Advocate General, for his part, said that it would be wrong to favour an expansive approach to the meaning and application of the provisions about legislative competence. Asserting that the purpose of the 1998 Act was to devolve plenary legislative power on the Parliament did not assist in determining the actual scope of what it was designed to achieve. The Dean of Faculty said that the appellants were content to align themselves with the views of the Advocate General.

12 It is unsatisfactory that there should continue to be room for doubt on this matter. So it may be helpful to summarise, quite briefly, three principles that should be followed when undertaking the exercise of determining whether, according to the rules that the 1998 Act lays down, a provision of an Act of the Scottish Parliament is outside competence.

13 First, the question of competence must be determined in each case according to the particular rules that have been set out in section 29 of and Schedules 4 and 5 to the 1998 Act. It is not for the courts to say whether legislation on any particular issue is better made by the Scottish Parliament or by the Parliament of the United Kingdom at Westminster: Martin v Most 2010 SC (UKSC) 40, para 5. How that issue is to be dealt with has been addressed and determined by the United Kingdom Parliament. As Lord Walker observed in Martin, para 44, its task was to define the legislative competence of the Scottish Parliament, while itself continuing as the sovereign legislature of the United Kingdom. The statutory language was informed by principles that were applied to resolve questions that had arisen in federal systems, where the powers of various legislatures tend to overlap: see Martin, paras 11–15. But the intention was that it was to the 1998 Act itself, not to decisions as to how the problem was handled in other jurisdictions, that one should look for guidance. So it is to the rules that the 1998 Act lays down that the court must address its attention, bearing in mind that a provision may have a devolved purpose and yet be outside competence because it contravenes one of the rules. As Lord Atkin said in Gallagher v Lynn [1937] AC 863, 870, an Act may have a perfectly lawful object but may seek to achieve that object by invalid methods.

14p. 405 Second, those rules must be interpreted in the same way as any other rules that are found in a UK statute. The system that those rules laid down must, of course, be taken to have been intended to create a system for the exercise of legislative power by the Scottish Parliament that was coherent, stable and workable. This is a factor that it is proper to have in mind. But it is not a principle of construction that is peculiar to the 1998 Act. It is a factor that is common to any other statute that has been enacted by the legislature, whether at Westminster or at Holyrood. The best way of ensuring that a coherent, stable and workable outcome is achieved is to adopt an approach to the meaning of a statute that is constant and predictable. This will be achieved if the legislation is construed according to the ordinary meaning of the words used.

15 Third, the description of the Act as a constitutional statute cannot be taken, in itself, to be a guide to its interpretation. The statute must be interpreted like any other statute. But the purpose of the Act has informed the statutory language. Its concern must be taken to have been that the Scottish Parliament should be able to legislate effectively about matters that were intended to be devolved to it, while ensuring that there were adequate safeguards for those matters that were intended to be reserved. That purpose provides the context for any discussion about legislative competence. So it is proper to have regard to the purpose if help is needed as to what the words actually mean. The fact that section 29 provides a mechanism for determining whether a provision of an Act of the Scottish Parliament is outside, rather than inside, competence does not create a presumption in favour of competence. But it helps to show that one of the purposes of the 1998 Act was to enable the Parliament to make such laws within the powers given to it by section 28 as it thought fit. It was intended, within carefully defined limits, to be a generous settlement of legislative authority.

16 It will, of course, be necessary to identify the purpose of the provision if the challenge is brought under section 29(2)(b) on the ground that it relates to a reserved matter, bearing in mind that the phrase ‘relates to’ indicates something more than a loose or consequential connection: see Lord Walker in Martin v Most, para 49. As Lord Rodger said in that case at para 75, the clearest indication of its purpose may be found in a report that gave rise to the legislation or in a report from one of the committees of the Parliament. But it may also be clear from its context. As is the case when any other statute is being construed, the context will be relevant to understanding the meaning of the words used by the 1998 Act.

Appeal dismissed.

Questions
1.

What is the status of the decision of the House of Lords in Robinson following Imperial Tobacco? Lord Reed in the Inner House of the Court of Session thought that his view was not necessarily inconsistent with the position set out by Lord Bingham in Robinson, but can the same be said of the clarification offered by Lord Hope in the Supreme Court?

2.

Was the Supreme Court in Imperial Tobacco right to say that the devolution Acts should be interpreted in the same way as any other Act of Parliament? Does this have an impact on the status of the devolution Acts, or is it simply a necessary consequence of the fact that the UK constitution is uncodified and based on the doctrine of parliamentary sovereignty?

3.

In H v Lord Advocate [2012] UKSC 24, [2013] 1 AC 413, Lord Hope said at [30]:

[T]he effect of the Scotland Act is that the Scottish Ministers derive their existence only from that Act. As has been repeatedly pointed out by the court, they have no power to act other than in a way that is consistent with section 57(2) of that Act: see, eg, HM Advocate v R [2004] 1 AC 462, paras 46, 129; McGowan v B [2011] 1 WLR 3121, para 6. The functions that the [Extradition Act 2003] has conferred on the Scottish Ministers must be seen in that light. It would perhaps have been open to Parliament to override the provisions of section 57(2) so as to confer on them more ample powers than that subsection would permit in the exercise of their functions under the 2003 Act. But in my opinion only an express provision to that effect could be held to lead to such a result. This is because of the fundamental constitutional nature of the settlement that was achieved by the Scotland Act. This in itself must be held to render it incapable of being altered p. 406otherwise than by an express enactment. Its provisions cannot be regarded as vulnerable to alteration by implication from some other enactment in which an intention to alter the Scotland Act is not set forth expressly on the face of the statute.

The comments of Lord Hope as to the need for alteration of the Scotland Act 1998 to be by express enactment can be understood to be obiter dicta, because it was held in this case that there was no clash between the 1998 Act and the Extradition Act 2003, which could operate in ‘parallel’ (and thus the question of whether the 2003 Act had purported to repeal any part of the 1998 Act did not need to be determined). Nevertheless, is this position consistent in principle with Lord Hope’s comments in Imperial Tobacco about the ‘constitutional’ nature of legislation being irrelevant to the manner in which it should be interpreted? Is it coherent to understand the constitutional nature of the devolution Acts as being relevant to the question of how they might be repealed or altered, but not as to how they are to be interpreted?

4.

How does the discussion of the legal implications of the ‘constitutional’ status of the devolution Acts considered in this section relate to developments considered in Chapter 2, Section 3A(c) at pp. 76–83, in relation to EU membership? In particular, do the comments about ‘constitutional instruments’ contained in HS2 [2014] UKSC 3 suggest that the UK Supreme Court may in future attach greater importance to the designation of statutes (including the devolution statutes) as ‘constitutional’? Or is this simply rhetoric, with limited concrete legal consequences? See also the description of the European Communities Act 1972 as possessing a ‘constitutional character’ in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [67]. The judgment of the majority does not suggest that this description of the 1972 Act has any general legal implications, beyond the fact that the legislation has in substance had a profound impact on UK constitutional law (this position can be contrasted with the more extensive observations of the Divisional Court in Miller [2016] EWHC 2768 (Admin), where it was accepted that the designation of the 1972 Act as a constitutional statute was material to its interpretation: [43]–[44], [82]–[88]).

B: Judicial review of devolved legislation

As discussed earlier, the legislative competence of the Scottish Parliament, the Welsh Parliament, and Northern Ireland Assembly is expressly limited by the Acts of Parliament which constituted these devolved legislatures. Matters which are explicitly reserved to the Westminster Parliament, are outside the competence of these legislatures, as is any Act which violates the ECHR or (prior to Brexit) the restriction relating to EU law (now a potential limit concerning ‘retained EU law’).

These challenges to legislative competence are often considered in combination, with overlaps between the various statutory limits on the power of the devolved legislatures. For a recent example, see the challenge to the Children and Young People (Scotland) Act 2014, introducing the requirement that every child in Scotland would have a ‘named person’ to support their well-being, with the sharing of data between relevant public authorities crucial to enable each named person to fulfil their role. In a challenge to this legislation, in Christian Institute v Lord Advocate [2016] UKSC 51, 2016 SLT 805, the Supreme Court concluded, [106]:

that the information sharing provisions of Pt 4 of the Act (a) do not relate to reserved matters, namely the subject matter of the [Data Protection Act 1998] and [Directive 95/46/EC], (b) are incompatible with the rights of children, young persons and parents under art.8 of the ECHR because they are not ‘in accordance with the law’ as that article requires, (c) may in practice result in a disproportionate interference with the art.8 rights of many children, young persons and their parents, through the sharing of private information, and (d) are not incompatible with EU law in any way which goes beyond their incompatibility with art.8 of the ECHR … Conclusion (b) therefore means that the information sharing provisions of Pt 4 of the Act are not within the legislative competence of the Scottish Parliament.

p. 407But in addition to these expressly defined statutory limits, are there implied limits on the power of the devolved legislatures? The following case—decided in relation to the Scottish Parliament, but of general applicability—addresses this issue.

Axa General Insurance Ltd v Lord Advocate
[2011] UKSC 46, [2012] 1 AC 868, Supreme Court

The Damages (Asbestos-related Conditions) Scotland Act 2009 was enacted to reverse the effect of the decision of the House of Lords in Rothwell v Chemical Insulating Co Ltd [2008] AC 281. The 2009 Act provided that specified asbestos-related medical conditions would constitute (and be treated as always having constituted) actionable harm for personal injury for which damages could be awarded. Having rejected the argument that the 2009 Act was an unlawful violation of the right to peaceful enjoyment of possessions protected by Art. 1 of Protocol 1 to the ECHR (A1P1), and therefore within the competence of the Scottish Parliament as defined by s. 29 of the Scotland Act 1998, a common law challenge to the 2009 Act was considered.

LORD HOPE:

The common law grounds

42 The appellants’ case at common law is that the 2009 Act was the result of an unreasonable, irrational and arbitrary exercise of the legislative authority conferred by the Scotland Act 1998 on the Scottish Parliament … [T]he question as to whether Acts of the Scottish Parliament and measures passed under devolved powers by the legislatures in Wales and Northern Ireland are amenable to judicial review, and if so on what grounds, is a matter of very great constitutional importance. It goes to the root of the relationship between the democratically elected legislatures and the judiciary. At issue is the part which the rule of law itself has to play in setting the boundaries of this relationship. I think therefore that the argument which this part of the appellants’ case raises cannot be dismissed so easily.

43 The issue can be broken down into its component parts in this way. First, there is the question whether measures passed by the devolved legislatures are amenable to judicial review, other than in the respects expressly provided for by the devolution statutes, at all. If not, that will be the end of the argument. But if they are open to judicial review on common law grounds at all, there is the question as to what these grounds are. At the one extreme are the grounds that the appellants’ second plea in law encapsulates: that the legislation is unreasonable, irrational or arbitrary. At the other is the proposition that judicial intervention is admissible only in the exceptional circumstances that Lord Steyn had in mind in R (Jackson) v Attorney General [2006] 1 AC 262, para 102; see also my own speech at paras 104–107 and Baroness Hale of Richmond’s observations at para 159. To answer these questions in their proper context it is necessary to set out the background in a little more detail. Although I am conscious of the implications of what the court decides in this case for the other devolved legislatures, I shall concentrate on the position of the Scottish Parliament. As was common ground before us, I consider that, while there are some differences of detail between the Scotland Act 1998 and the corresponding legislation for Wales and Northern Ireland, these differences do not matter for present purposes. The essential nature of the legislatures that the legislation has created in each case is the same. …

45 Devolution is an exercise of its law-making power by the United Kingdom Parliament at Westminster. It is a process of delegation by which, among other things, a power to legislate in areas that have not been reserved to the United Kingdom Parliament may be exercised by the devolved legislatures. The Scotland Act 1998 sets out the effect of the arrangement as it affects Scotland with admirable clarity. Section 1(1) of the Act declares: ‘There shall be a Scottish Parliament.’ Its democratic legitimacy is enshrined in the provisions of section 1(2) and section 1(3), which provide for the election of those who are to serve as its members as constituency members and by a system of proportional representation chosen from the regional lists. Section 28(1) provides that the Parliament may make laws, to be known as p. 408Acts of the Scottish Parliament, and section 28(2) provides for them to receive the Royal Assent. Section 28(5) provides that the validity of an Act of the Scottish Parliament is not affected by any invalidity in the proceedings of the Parliament leading to its enactment. Although section 28(7) provides that that section shall not affect the power of the United Kingdom to make laws for Scotland, in practice the Scottish Parliament enjoys the same law making powers for Scotland as the Westminster Parliament except as provided expressly for in section 29 which, in certain closely defined respects, limits its legislative competence. Section 29 does not, however, bear to be a complete or comprehensive statement of limitations on the powers of the Parliament. The Act as a whole has not adopted that approach: see Somerville v Scottish Ministers (HM Advocate General for Scotland intervening) [2007] 1 WLR 2734, para 28.

46 The carefully chosen language in which these provisions are expressed is not as important as the general message that the words convey. The Scottish Parliament takes its place under our constitutional arrangements as a self-standing democratically elected legislature. Its democratic mandate to make laws for the people of Scotland is beyond question. Acts that the Scottish Parliament enacts which are within its legislative competence enjoy, in that respect, the highest legal authority. The United Kingdom Parliament has vested in the Scottish Parliament the authority to make laws that are within its devolved competence. It is nevertheless a body to which decision making powers have been delegated. And it does not enjoy the sovereignty of the Crown in Parliament that, as Lord Bingham of Cornhill said in Jackson, para 9, is the bedrock of the British constitution. Sovereignty remains with the United Kingdom Parliament. The Scottish Parliament’s power to legislate is not unconstrained. It cannot make or unmake any law it wishes. …

47 Against this background, as there is no provision in the Scotland Act which excludes this possibility, I think that it must follow that in principle Acts of the Scottish Parliament are amenable to the supervisory jurisdiction of the Court of Session at common law. The much more important question is what the grounds are, if any, on which they may be subjected to review.

48 There is very little guidance as to how this question should be answered in the authorities. … The fact is that, as a challenge to primary legislation at common law was simply impossible while the only legislature was the sovereign Parliament of the United Kingdom at Westminster, we are in this case in uncharted territory. The issue has to be addressed as one of principle.

49 The dominant characteristic of the Scottish Parliament is its firm rooting in the traditions of a universal democracy. It draws its strength from the electorate. While the judges, who are not elected, are best placed to protect the rights of the individual, including those who are ignored or despised by the majority, the elected members of a legislature of this kind are best placed to judge what is in the country’s best interests as a whole. A sovereign Parliament is, according to the traditional view, immune from judicial scrutiny because it is protected by the principle of sovereignty. But it shares with the devolved legislatures, 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, if at all, only in the most exceptional circumstances. As Lord Bingham of Cornhill said in R (Countryside Alliance) v Attorney General [2008] AC 719, para 45, the democratic process is liable to be subverted if, on a question of political or moral judgment, opponents of an Act achieve through the courts what they could not achieve through Parliament. …

51 We do not need, in this case, to resolve the question how these conflicting views about the relationship between the rule of law and the sovereignty of the United Kingdom Parliament may be reconciled. The fact that we are dealing here with a legislature that is not sovereign relieves us of that responsibility. It also makes our task that much easier. In our case the rule of law does not have to compete with the principle of sovereignty. As I said in Jackson, para 107, the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. I would take that to be, for the purposes of this case, the guiding principle. Can it be said, then, that Lord Steyn’s endorsement of Lord Hailsham’s warning about the dominance over Parliament of a government elected with a large majority has no bearing because such a thing could never happen in the devolved legislatures? I am not prepared p. 409to make that assumption. We now have in Scotland a government which enjoys a large majority in the Scottish Parliament. Its party dominates the only chamber in that Parliament and the committees by which bills that are in progress are scrutinised. It is not entirely unthinkable that a government which has that power may seek to use it to abolish judicial review or to diminish the role of the courts in protecting the interests of the individual. Whether this is likely to happen is not the point. It is enough that it might conceivably do so. The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise.

52 As for the appellants’ common law case, I would hold, in agreement with the judges in the Inner House (2011 SLT 439, para 88), that Acts of the Scottish Parliament are not subject to judicial review at common law on the grounds of irrationality, unreasonableness or arbitrariness. This is not needed, as there is already a statutory limit on the Parliament’s legislative competence if a provision is incompatible with any of the Convention rights: section 29(2)(d) of the Scotland Act 1998. But it would also be quite wrong for the judges to substitute their views on these issues for the considered judgment of a democratically elected legislature unless authorised to do so, as in the case of the Convention rights, by the constitutional framework laid down by the United Kingdom Parliament.

LORD REED:

147 In these circumstances, it appears to me that it must have been Parliament’s intention, when it established the Scottish Parliament, that that institution should have plenary powers within the limits upon its legislative competence which were created by section 29(2). Since its powers are plenary, they do not require to be exercised for any specific purpose or with regard to any specific considerations. It follows that grounds of review developed in relation to administrative bodies which have been given limited powers for identifiable purposes, and which are designed to prevent such bodies from exceeding their powers or using them for an improper purpose or being influenced by irrelevant considerations, generally have no purchase in such circumstances, and cannot be applied. As a general rule, and subject to the qualification which I shall mention shortly, its decisions as to how to exercise its law-making powers require no justification in law other than the will of the Parliament. It is in principle accountable for the exercise of its powers, within the limits set by section 29(2), to the electorate rather than the courts.

149 There remains the question whether the court possesses the power to intervene, in exceptional circumstances, on grounds other than those specified in section 29(2): as, for example, if it were shown that legislation offended against fundamental rights or the rule of law. In their submissions, counsel for the Lord Advocate accepted that devolved legislation was subject to review on such grounds, which they categorised as constitutional review, in distinction from administrative review.

150 Fundamental rights and the rule of law are protected by section 29(2) of the Act, in so far as it preserves Convention rights. But, as Lord Steyn pointed out in R (Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604, para 27:

‘The Convention is not an exhaustive statement of fundamental rights under our system of law. Lord Hoffmann’s dictum (in Ex p Simms) applies to fundamental rights beyond the four corners of the Convention.’

The question is therefore not of purely academic significance.

152 The principle of legality means not only that Parliament cannot itself override fundamental rights or the rule of law by general or ambiguous words, but also that it cannot confer on another body, by general or ambiguous words, the power to do so. …

153p. 410 The nature and purpose of the Scotland Act appear to me to be consistent with the application of that principle. As Lord Rodger of Earlsferry said in HM Advocate v R [2004] 1 AC 462, para 121, the Scotland Act is a major constitutional measure which altered the government of the United Kingdom; and his Lordship observed that it would seem surprising if it failed to provide effective public law remedies, since that would mark it out from other constitutional documents. In Robinson v Secretary of State for Northern Ireland [2002] N.I. 390, para 11, Lord Bingham of Cornhill said of the Northern Ireland Act 1998 that its provisions should be interpreted ‘bearing in mind the values which the constitutional provisions are intended to embody’. That is equally true of the Scotland Act. Parliament did not legislate in a vacuum: it legislated for a liberal democracy founded on particular constitutional principles and traditions. That being so, Parliament cannot be taken to have intended to establish a body which was free to abrogate fundamental rights or to violate the rule of law.

154 There is however no suggestion in the present case that the Scottish Parliament has acted in such a manner. That being so, and review for irrationality being excluded, it follows that the challenge to the validity of the 2009 Act on common law grounds must be rejected.

Appeal dismissed.

Questions
1.

On one hand, the common law jurisdiction of the courts to review devolved legislation was at issue in the Axa case; on the other hand (as Lord Reed noted at [154]), there was no question that the enactment of the 2009 Act was in violation of fundamental rights or the rule of law, and so did not constitute the kind of exceptional circumstances that were being discussed by the Justices of the Supreme Court. Are the comments of Lords Hope and Reed (with which all the judges agreed) as to the fact that Acts of the Scottish Parliament are amenable to common law review in exceptional circumstances obiter dicta, or part of the ratio in Axa?

2.

Section 29 of the Scotland Act 1998 makes clear, extensive provision as to what is within, and what is outside of, the legislative competence of the Scottish Parliament, including providing greater protection for ECHR rights than is established in relation to Acts of the Westminster Parliament under the Human Rights Act 1998. Given the constitutional significance of the Scotland Act 1998, and the desirability of constitutions being accessible to citizens, can it be argued that the Supreme Court should have viewed s. 29 as setting out exhaustive limits on the legislative competence of the Scottish Parliament?

3.

Do Lords Hope and Reed give sufficient detail as to what sort of legislation might be considered so extreme or exceptional as to justify the courts invalidating it at common law? If you were advising either the Scottish Government or affected citizens as to whether an Act of the Scottish Parliament was valid at common law, how easy would this be using the judgments handed down in Axa?

4.

Since the UK Parliament, the Scottish Parliament, the Welsh Parliament, and the Northern Ireland Assembly are all democratically elected legislatures, is the fact that, following Axa, Acts of the former are not subject to common law judicial review, whereas Acts of the others are, something that can be justified? If not, does this mean the courts should use Axa (in combination with the controversial obiter dicta of Lords Hope, Steyn, and Baroness Hale in Jackson, discussed in Chapter 2, Section 3C at pp. 94–101) to challenge the sovereignty of the UK Parliament? Or that the courts should be very reluctant to strike down Acts of the devolved legislatures on common law grounds?

C: References to the Supreme Court

As we saw earlier, under the devolution Acts applicable to Scotland, Wales, and Northern Ireland, references can be made to the Supreme Court to determine in advance whether proposed legislation falls within the competence of a devolved legislature. There have p. 411been a number of made in relation to Welsh Assembly Bills in particular. The first such case to be heard by the Supreme Court concerned the question of whether s. 9 of the Local Government Byelaws (Wales) Bill 2012 was within the legislative competence of the National Assembly for Wales (as it then was), in so far as it gave to Welsh Ministers a power to add further byelaws to a list of those which could be enacted without confirmation of the UK Secretary of State (as was previously required, and which was outside the competence of the Assembly, by Sch. 7 to the Government of Wales Act 2006, unless the Secretary of State consented to its enactment, or the removal of functions was ‘incidental to, or consequential on’ the other provisions in the Bill). The Supreme Court held that the Bill was within legislative competence, and Lord Hope addressed the question of why a reference had been necessary in light of the structure of the Welsh devolution system.

Attorney General v National Assembly for Wales Commission
[2012] UKSC 53, [2013] 1 AC 792, Supreme Court

LORD HOPE:

74 The reason why a reference has been made in this case, in contrast to the lack of use of the equivalent provision in Scotland, is likely to lie in differences between the systems that have been used to devolve legislative power to the devolved legislatures from the United Kingdom Parliament at Westminster and executive power to the devolved governments from Ministers of the United Kingdom Government. Under the Scottish system, the general power to make laws conferred on the Scottish Parliament by section 28 is subject to section 29 of the 1998 Act, which provides that an Act of the Scottish Parliament is outside its competence so far as, among other things, it relates to matters reserved to Westminster or is in breach of the restrictions in Schedule 4. A list of the reserved matters is set out in Schedule 5 to the 1998 Act. These provisions were accompanied by a general transfer of functions conferred on Ministers of the Crown to the Scottish Ministers by section 53, so far as these functions are exercisable within devolved competence.

75 Under the Welsh system, section 108 of the 2006 Act provides that a provision of an Act of the Assembly is within competence only if it falls within subsections (4) or (5) of that section and complies with the requirements of subsection (6). It must relate to one or more of the subjects listed in Schedule 7 to be within competence. A transfer of functions from Ministers of the Crown to the Welsh Ministers is achieved by an Order in Council made under section 58 of the 2006 Act, which may direct among other things (i) that functions are to be exercisable by the Welsh Ministers, the First Minister or the Counsel General concurrently with the Minister of the Crown or (ii) that any function so far as exercisable by a Minister of the Crown in relation to Wales is to be exercisable by the Minister of the Crown only with the agreement of, or after consultation with, the Welsh Ministers, the First Minister or the Counsel General. This is a more cautious transfer of executive power than that which was thought appropriate for Scotland. Not surprisingly, the question where the balance has been struck between the functions of the Welsh Ministers on the one hand and the Ministers of the Crown on the other is a sensitive one.

NOTE: As Lord Hope notes at [87], while this was the first devolution reference actually to reach the Supreme Court, it was not the first to have been made:

The only previous example of a reference being made to the Supreme Court of a Bill passed by a devolved legislature is a reference that was made by the Attorney General for Northern Ireland in 2011. As was noted in AXA General Insurance Co Ltd v HM Advocate [2012] 1 AC 868, para 15, he referred the question whether the Damages (Asbestos-related Conditions) (Northern Ireland) Bill was within the competence of the Northern Ireland Assembly for pre-enactment scrutiny under section 11 of the Northern Ireland Act 1998. … But the reference was withdrawn before the hearing of the appeal in the AXA case took place.

p. 412Further references have been made in relation to the Agricultural Sector (Wales) Bill and in relation to the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill. In the former reference [2014] UKSC 43, the Supreme Court decided that the Bill to establish an Agricultural Advisory Panel for Wales (replacing the Agricultural Wages Board for England and Wales, which had been abolished by legislation of the UK Parliament) was within the legislative competence of the Welsh Assembly, because it crucially related to the devolved subject of agriculture, and it did not matter whether it also related in some way to a subject (in this case, employment) for which competence had not been devolved:

[67] … The legislation does not require that a provision should only be capable of being characterised as relating to a devolved subject.

[68] … Not only is [the alternative approach] impermissible in principle, but it would in practice restrict the powers of the Assembly to legislate on subjects which were intended to be devolved to it: as the present case demonstrates, a Bill which undoubtedly relates to a devolved subject may also be capable of being classified as relating to a subject which is not devolved. Such an interpretation of section 108 would therefore give rise to an uncertain scheme that was neither stable nor workable. In contrast, the application of the clear test in section 108 provides for a scheme that is coherent, stable and workable.

The third Welsh reference to reach the Supreme Court was more controversial.

Re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill
[2015] UKSC 3, [2015] AC 1016, Supreme Court

The reference concerned a Bill which was intended to allow the National Health Service in Wales to recover the costs of treating asbestos-related diseases from an employer or insurer who was liable to compensate a person in receipt of medical treatment. The Counsel General for Wales referred the question of whether the Bill was within legislative competence to the Supreme Court; the Association of British Insurers received permission to intervene, and argued that the Bill was outside legislative competence as it did not relate to the devolved subject of ‘health and health services’, and violated the insurers’ right to peaceful enjoyment of their possessions under Art. 1 of Protocol 1 to the ECHR, in particular due to its retrospective imposition of liability on insurers.

LORD MANCE (with whom LORD NEUBERGER and LORD HODGE agreed):

26 The provision of health services and the organisation and funding of the Welsh NHS clearly cannot permit the Welsh Assembly to raise moneys generally, by relying on the fact that any moneys raised from any source increase the funds available for all its spending, including spending on the Health Service. The question is whether the position is different if the moneys raised can be said to be specifically intended or hypothecated to provide funds for use in the Health Service. …

27 In these circumstances, any raising of charges permissible under paragraph 9 [of Pt.1 of Sch.7 to the Government of Wales Act 2006] would have, in my opinion, to be more directly connected with the service provided and its funding. The mere purpose and effect of raising money which can or will be used to cover part of the costs of the Welsh NHS could not constitute a sufficiently close connection. In the case of prescription or other charges to users of the Welsh NHS service, a direct connection with the service and its funding exists, in that users are directly involved with and benefitting by the service. In the case of charges under section 2, the argument would have to be that a sufficient connection can be found in the actual or alleged wrongdoing that led to a compensator making a compensation payment to or in respect of a sufferer from an asbestos-related disease. But that is at best an indirect, loose or consequential connection. The expression ‘organisation and funding of national health service’ could not, in my opinion, have been conceived with a view to covering what would amount in reality to rewriting the law of tort and breach of statutory duty by imposing on third persons (the p. 413compensators), having no other direct connection in law with the NHS, liability towards the Welsh Ministers to meet costs of NHS services provided to sufferers from asbestos-related diseases towards whom such third persons decide to make a compensation payment for liability which may or may not exist or have been established or admitted.

In relation to compatibility with Art. 1 of Protocol 1, the majority continued:

66 The Counsel General maintains that special justification exists for the retrospectivity involved in the Bill because, without it, the Bill cannot achieve its legitimate policy aim. That is a circular submission, which, if accepted, would eliminate the important balancing stage of the proportionality exercise identified by Lord Reed JSC in Bank Mellat (para 45 above), by Lord Hope DPSC in AXA (para 51 above), and by the Strasbourg court in its case law: paras 44–48 above. As a matter of legislative policy it could be thought appropriate by the relevant legislature that the Welsh NHS should be able to recover hospitalisation costs from those whose breach of tortious or statutory duty caused them to be incurred. But that is, as I have noted, a provision which could have been made by the United Kingdom when or at any time since the NHS was introduced. It is a provision which would no doubt have been proportionate if introduced in relation to future exposure to asbestos and future insurance contracts. But rewriting historically incurred obligations to impose it in relation to future Welsh NHS costs is a quite different step. It is a step for which, on the authorities and as the Counsel General accepts, special justification is necessary, and none is shown. I therefore conclude that, even assuming the Bill to satisfy section 108(4) and/or (5), it falls outside the legislative competence of the Welsh Assembly.

LORD THOMAS (dissenting, with whom BARONESS HALE agreed):

93 [T]here is a clear distinction between exercising general tax raising powers and charging for services provided by the NHS. A specific cost can be attributed to the services. The funds so raised can then be used to defer the costs of those services rather than utilising the grant provided to the Welsh Consolidated Fund. Thus it is entirely consistent with the grant to the Welsh Assembly of primary legislative powers in respect of health under heading 9, that the Welsh Assembly was given competence to vary the NHS (Wales) Act and to charge for services provided without being constrained by the terms of that Act. …

100 As the Welsh Assembly has, in my view, competence to impose such charges directly on the employees, I can see no objection to the competence of the Welsh Assembly under the provisions of section 108(4)(5) and heading 9 of Part 1 of Schedule 7 in imposing such charges directly on the employers to achieve the aims of the Bill.

On the question of retrospectivity:

108 … [T]he Welsh Assembly’s objective in making the tortfeasor pay rather than the public as a whole is a choice which can properly be regarded as having an economic and social purpose. This is clearly an objective on which different views can reasonably be held. However, it is in every respect pre-eminently a political judgment in relation to social and economic policy on which it is for the legislative branch of the state to reach a judgment. The judicial branch of the state should not therefore question this first and central aim of the Bill, as there are manifestly reasonable grounds for reaching the view which the Welsh Assembly has reached. …

124 In the present case, as I have concluded that the view taken by the Welsh Assembly is a view which is reasonably open to it as a view of the public interest and of social justice on a matter of social and economic policy, I therefore consider great weight should be attached to the legislative choice made by the Welsh Assembly as expressed in the Bill enacted by it as primary legislation within its competence. It must follow therefore that the judgment of the Welsh Assembly as to the public interest and social justice should be preferred on matters of social and economic policy to a judicial view of what it regards as being in the public interest and representing social justice.

p. 414Nevertheless, while the aim of the policy was legitimate, in one respect the minority agreed that the Bill would violate the right to peaceful enjoyment of possessions:

138 … I can see no justification in the balancing exercise under A1P1 for extending the liability of insurers under section 14 further than the indemnity which insurers were bound to provide under their policies if the indemnity had been called on to indemnify the sums which would have been payable by the employers as damages.

(e) Conclusion in relation to insurers

139 It is for that reason, I have come to the conclusion that section 14 as drafted, besides being beyond the competence under section 108(4)(5), infringes A1P1. However if section 14 had been limited in the way I have suggested, I would have considered it as a provision that achieved a fair balance under A1P1. That is because the retrospectivity would have been limited to providing an indemnity solely in respect of the machinery of collection of sums that would have been otherwise due under the insurance policies if the charges imposed by the Welsh Assembly had been payable by way of damages by the employers as tortfeasors in the ordinary way.

140 For the reasons I have given, insurers, just as employers, have no legitimate interest which protects them against the withdrawal of the state benefit conferred in the provision of free medical treatment and care for diseases caused by negligence or breach of statutory duty, irrespective of whether that negligence or breach of statutory duty occurred in the past, particularly in circumstances where the consequences of such wrongdoing take many years to become manifest.

NOTE: The decision of the majority has been criticized on the grounds that it departs from previous devolution case law and takes too narrow a view of the competence of the Welsh Assembly, characterizing the purpose of the Bill in such a way as to place it outside the devolved responsibility for ‘health and health services’. A further controversy relates to the extent the court was willing to question the policy choices made by the democratically elected legislature. For Lord Thomas:

122 I cannot see why in principle the United Kingdom Parliament in making legislative choices in relation to England (in relation to matters such as the funding of the NHS in England) is to be accorded a status which commands greater weight than would be accorded to the Scottish Parliament and the Northern Ireland and Welsh Assemblies in relation respectively to Scotland, Northern Ireland and Wales. As each democratically elected body must be entitled to form its own judgment about public interest and social justice in matters of social and economic policy within a field where, under the structure of devolution, it has sole primary legislative competence, there is no logical justification for treating the views of one such body in a different way to the others, given the constitutional structure that has been developed. The judgment of each must have the same effect and force. Although the weight to be accorded to the judgment of these legislative bodies will vary according to the matter in issue, there is no reason in determining weight to treat the judgment of the Scottish Parliament, the Northern Ireland Assembly and the Welsh Assembly in any way different to the United Kingdom Parliament.

Whereas Lord Mance took a more restrictive view, arguing that:

67 Lord Thomas of Cwmgiedd CJ attaches great weight to the judgment of the Welsh Assembly that this is a measure which should in the interests of Wales be enacted. I agree that weight should be given to the Welsh Assembly’s judgment. But it is the court’s function, under GOWA, to evaluate the relevant considerations and to form its own judgment, on the issue both of legislative competence and of consistency with the Convention rights.

For critical discussion, see A. Tomkins, ‘Confusion and Retreat: The Supreme Court on Devolution’, UK Constitutional Law Association Blog (19 February 2015).

Questions
1.

Did the decision in Re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill take a broad or narrow approach to the scope of the Welsh Assembly’s competence? Compare with the approach of the Supreme Court in Re Agricultural Sector (Wales) Bill—which do you think is preferable, and why?

2.

p. 415 Are the democratically elected devolved legislatures comparable to the UK Parliament? What are the constitutional similarities and differences?

3.

Should the courts defer to the decisions made by the devolved legislatures on difficult questions of social and economic policy, especially when challenged on human rights grounds? See also Chapter 9.

The first reference in relation to an Act of the Scottish Parliament has now been made, in the context of the Brexit process.

The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill—Reference by the Attorney General and the Advocate General for Scotland
[2018] UKSC 64

The reference concerned a Bill which was intended to provide for a continuing close connection between EU law and Scots law in devolved areas. Among other things, it included powers for Scottish Ministers to make decisions about the content and effects of retained EU law in Scotland, even where the UK Parliament had decided retained EU law should have a different substance. This included provisions to give continuing force to the EU Charter of Fundamental Rights in Scotland, rights of legal challenge on the basis of the incompatibility of retained EU law with EU law itself, and an obligation for the courts to have regard to post-Brexit decisions of the CJEU. A further contested power was contained in clause 17, providing that any subordinate legislation which modified retained EU law in relation to devolved matters would be of no legal effect without the consent of Scottish Ministers. The UK government challenged the Continuity Bill as being entirely outside the legislative competence of the Scottish Parliament on the basis that ‘international relations’, including those with the EU, were a reserved matter. The UK government also challenged the specific provisions of the Bill as being incompatible with the UK Parliament’s EU (Withdrawal) Act 2018, which had been made a protected enactment under the terms of Sch. 4 of the Scotland Act 1998, and so was immune from being modified by devolved legislation.

LADY HALE, LORD REED, LORD KERR, LORD SUMPTION, LORD CARNWATH, LORD HODGE and LORD LLOYD-JONES:

33. In our judgment, the Scottish Bill does not ‘relate to’ relations with the EU. It will take effect at a time when there will be no legal relations with the EU unless a further treaty is made with the EU. The Bill does not purport to deal with any legal rule affecting the power of Ministers of the Crown to negotiate such a treaty or otherwise to conduct the UK’s relations with the EU. It does not purport to affect the way in which current negotiations between the UK and the EU are conducted. It simply regulates the legal consequences in Scotland of the cessation of EU law as a source of domestic law relating to devolved matters, which will result from the withdrawal from the EU already authorised by the UK Parliament. This is something that the Scottish Parliament is competent to do, provided (i) that it does it consistently with the powers reserved in the Scotland Act to the UK Parliament, and with legislation and rules of law protected under Schedule 4, and (ii) that its legislation does not relate to other reserved matters. Parts of the argument of the UK Law Officers appear to suggest a wider objection that separate Scottish legislation about the consequences of withdrawal is legally untidy, politically inconvenient or redundant in the light of the corresponding UK legislation. But we are not concerned with supposed objections of this kind, which go to the wisdom of the legislation and not to its competence.

51. As appears from the authorities cited by the Lord Advocate, one enactment does not modify another merely because it makes additional provision in the same field of law. If it did, the important distinction between the protection of enactments from modification under Schedule 4 to the Scotland Act, and the inability of the Scottish Parliament to legislate in relation to reserved matters under Schedule 5, would become obscured. When the UK Parliament decides to reserve an entire area of the law to itself, it does so by listing the relevant subject-matter in Schedule 5. When it has not taken that step, but has protected a particular enactment from modification by including it in Schedule 4, it is not to be treated as if it had listed the subject-matter of the enactment in Schedule 5. Where the only relevant restriction p. 416on the legislative power of the Scottish Parliament is the protection of an enactment from modification under Schedule 4, the Parliament has the power to enact legislation relating to the same subject-matter as the protected enactment, provided it does not modify it. Without attempting an exhaustive definition, a protected enactment will be modified by a later enactment, even in the absence of express amendment or repeal, if it is implicitly amended, disapplied or repealed in whole or in part. That will be the position if the later enactment alters a rule laid down in the protected enactment, or is otherwise in conflict with its unqualified continuation in force as before, so that the protected enactment has to be understood as having been in substance amended, superseded, disapplied or repealed by the later one.

52. Applying that approach, we are unable to accept the Lord Advocate’s submission that section 28(7) of the Scotland Act would not be modified by section 17 of the Bill. As the Lord Advocate acknowledges, the power of the UK Parliament to make laws for Scotland includes the power to make laws authorising the making of subordinate legislation by Ministers and other persons. An enactment of the Scottish Parliament which prevented such subordinate legislation from having legal effect, unless the Scottish Ministers gave their consent, would render the effect of laws made by the UK Parliament conditional on the consent of the Scottish Ministers. It would therefore limit the power of the UK Parliament to make laws for Scotland, since Parliament cannot meaningfully be said to ‘make laws’ if the laws which it makes are of no effect. The imposition of such a condition on the UK Parliament’s law-making power would be inconsistent with the continued recognition, by section 28(7) of the Scotland Act, of its unqualified legislative power. …

63. [We are not] persuaded that section 17 impinges upon the sovereignty of Parliament. Section 17 does not purport to alter the fundamental constitutional principle that the Crown in Parliament is the ultimate source of legal authority; nor would it have that effect. Parliament would remain sovereign even if section 17 became law. It could amend, disapply or repeal section 17 whenever it chose, acting in accordance with its ordinary procedures.

64. The preferable analysis is that although section 17, if it became law, would not affect Parliamentary sovereignty, it would nevertheless impose a condition on the effect of certain laws made by Parliament for Scotland, unless and until Parliament exercised its sovereignty so as to disapply or repeal it. It would therefore ‘affect the power of the Parliament of the United Kingdom to make laws for Scotland’, and so modify section 28(7) of the Scotland Act.

99. … by adding the UK Withdrawal Act to the list of provisions, in paragraph 1(2) of Schedule 4 to the Scotland Act, which are protected against modification, the UK Parliament has chosen to protect the UK Withdrawal Act against subsequent enactments under devolved powers which would alter a rule in the UK Withdrawal Act or conflict with its unqualified continuation in force. …

100. It is necessary therefore to examine the individual provisions of the Scottish Bill to see whether they have that effect on provisions of the UK Withdrawal Act. To that end, we invited parties to produce a schedule setting out their contentions in relation to the provisions of the Scottish Bill. We are grateful to the UK Law Officers, the Lord Advocate and their legal representatives for cooperating in the production of that schedule which has greatly assisted our work. It is not necessary for this court to refer to the many provisions of the Scottish Bill which merely replicate provisions in the UK Withdrawal Act and which therefore involve no modification of the latter. We can confine our attention to those provisions which we are persuaded do amount to modifications and which are therefore ‘not law’ in terms of section 29(1) and (2)(c) of the Scotland Act.

[The Supreme Court then listed 19 provisions which would amount to modifications of the UK Withdrawal Act, which it summarized in the Conclusion]

Conclusion

125. We therefore answer the reference as follows:

(i)

The Scottish Bill as a whole would not be outside the legislative competence of the Scottish Parliament because it does not relate to reserved matters.

(ii)

p. 417 Section 17 of the Scottish Bill would be outside the legislative competence of the Scottish Parliament because it would modify section 28(7) of the Scotland Act.

(v)

As a result of the enactment of the UK Withdrawal Act the following provisions of the Scottish Bill would at least in part be outside the legislative competence of the Scottish Parliament: sections 2(2), 5, 7(2)(b) & (3), 8(2), 9A, 9B, 10(2), (3)(a) and (4)(a), 11, 13B, 14, 14A, 15, 16, 19(1), 22, 26A(6), 33(1), (2) & (3) and Schedule 1 paragraphs 11(a) and 16.

Notes:
1.

Following the Supreme Court’s decision that many of the core provisions of the Continuity Bill were beyond the legislative competence of the Scottish Parliament, the Bill was withdrawn in its entirety by the Scottish Government. However, an amended, narrower Continuity Bill was later introduced leading to the enactment of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021. This legislation gives Scottish Ministers powers to ensure that Scottish law ‘keeps pace’ with EU law in devolved areas, while also establishing environmental principles applicable to decisions made by Scottish Ministers and public bodies, subject to oversight by a new agency ‘Environmental Standards Scotland’.

2.

Similar legislation to the original Continuity Bill had been introduced in Wales, which was also subject to a Reference to the Supreme Court, but that was withdrawn in April 2018 when the Welsh Government reached a deal with the UK government on a package of concessions which allowed it to recommend that the Senedd grant its consent for the UK’s Withdrawal Act. The Law Derived from the European Union (Wales) Act 2018 was enacted and then repealed in full within a matter of months.

3.

The Continuity Reference decision shows the continuing significance of parliamentary sovereignty in the devolution system. The numerous specific provisions found by the Supreme Court to be beyond the competence of the Scottish Parliament (listed in para. 125(v) earlier) were out of competence because the UK Parliament had legislated to make its own Withdrawal Act 2018 a protected enactment under the terms of Sch. 4 of the Scotland Act. This made the terms of the 2018 Act immune from modification, even by legislation which would otherwise have been within the competence of the Scottish Parliament (as was the case here, the Supreme Court having held that the Continuity Bill did not relate to a reserved matter).

4.

The particular issues with clause 17 of the Bill also raise interesting questions about parliamentary sovereignty. The Supreme Court decided that it would not be inconsistent with parliamentary sovereignty for subordinate legislation to be subject to the consent of Scottish Ministers—this was because the sovereign UK Parliament could always legislate to override the need for their consent. However, such a consent requirement was inconsistent with the provision in s. 28(7) which prevented the Scottish Parliament from legislating in any way which would ‘affect the power of the Parliament of the United Kingdom to make laws for Scotland’. The reasoning here is complex and not easy to analyse. First, it appears that s. 28(7) extends beyond just preserving the sovereignty of the UK Parliament, and may in itself constitute a broader, freestanding limit on the legislative competence of the Scottish Parliament (and the other devolved legislatures which are subject to a similar constraint). Second, it might suggest the Supreme Court is utilising a ‘manner and form’ understanding of parliamentary sovereignty (see Chapter 2), because the implication of the Supreme Court’s reasoning is that the imposition of a consent requirement for legislation is not inconsistent with parliamentary sovereignty—instead the legal problem here is that this consent requirement was imposed by the Scottish Parliament, contrary to the terms of the Scotland Act 1998. It may be possible, however, for the UK Parliament (which is not constrained by a similar statutory limit) to impose such a condition on its own legislation, without this challenging the idea of parliamentary sovereignty.

Questions
1.

What does the Continuity Bill Reference suggest about the nature of sovereignty in the devolution system? Is sovereignty in the UK now shared, or still possessed by the UK Parliament? Could it be both, if we distinguish between legal and political ideas of sovereignty?

2.

Is the reference process a useful mechanism? On the one hand, it enables clarity to be achieved about the validity of legislation prior to its enactment. On the other, it can delay p. 418the implementation of legislation which the devolved legislature was perfectly competent to enact. When the Supreme Court is required to engage in an assessment of the validity of legislation which is yet to be enacted, is there a risk it could be viewed as a political actor interfering in political disputes, especially between the devolved and UK institutions of government?

Section 4: Devolution as a dynamic settlement

In this final section, we consider key examples of the dynamic nature of devolution. That this is the case has already been demonstrated by the discussion to this point, with changes having already occurred in Scotland, Wales, and Northern Ireland since the modern devolution settlement was established in 1998. Here, we consider key recent or potential change to devolution in all three nations: (a) the Scottish independence referendum and its aftermath; (b) Welsh proposals for reform to devolution; and (c) change to abortion law in Northern Ireland. We also consider a final overarching issue: (d) Common Frameworks in the UK after Brexit.

A: The Scottish independence referendum and its aftermath

On its election with an overall majority as Scottish Government in 2011, the Scottish National Party administration sought to implement its core policy: the holding of a referendum on whether Scotland should leave the UK entirely, and become an independent nation. By Sch. 5 of the Scotland Act 1998, the constitution is a reserved matter, and in particular, by para. 1(b) of Part I, this includes ‘the Union of the Kingdoms of Scotland and England’. This posed a constitutional problem—the election of the Scottish National Party gave it both an electoral mandate and the votes in the Scottish Parliament to pass legislation making provision for an independence referendum to be held; yet to do so appeared to be beyond the legislative competence of the Scottish Parliament. Whether it would be lawful to enact an Act of the Scottish Parliament which purported to authorize the holding of a non-binding referendum, the result of which could not directly affect the constitution or the Union, was a matter of much debate. The prospect of this being settled by the UK Supreme Court in London, whether on a reference or on appeal, threatened to exacerbate the controversy further. The matter was settled after negotiation between the UK and Scottish governments, which led to the UK government making an order under s. 30 of the Scotland Act 1998—the Scotland Act 1998 (Modification of Schedule 5) Order 2013/242—extending to the Scottish Parliament, for a limited period of time, the competence to hold a referendum on Scottish independence. Acting on this power, the Scottish Parliament enacted legislation making provision for an independence referendum to be held.

Scottish Independence Referendum Act 2013

1. Referendum on Scottish independence

(1)

A referendum is to be held in Scotland on a question about the independence of Scotland.

(2)

The question is—

‘Should Scotland be an independent country?’

(3)

The ballot paper to be used for the purpose of the referendum is to be printed—

(a)

p. 419 in the form set out in schedule 1, and

(b)

according to the directions set out in that schedule.

(4)

The date on which the poll at the referendum is to be held is 18 September 2014, unless before then an order is made under subsection (6).

(5)

Subsection (6) applies if the Scottish Ministers are satisfied—

(a)

that it is impossible or impracticable for the poll at the referendum to be held on 18 September 2014, or

(b)

that it cannot be conducted properly if held on that date.

(6)

The Scottish Ministers may by order appoint a later day (being no later than 31 December 2014) as the day on which the poll at the referendum is to be held.

(7)

An order under subsection (6)—

(a)

may include supplementary or consequential provision,

(b)

may modify any enactment (including this Act), and

(c)

is subject to the affirmative procedure.

2. Those who are entitled to vote

Provision about who is entitled to vote in the referendum is made by the Scottish Independence Referendum (Franchise) Act 2013.

Notes:
1.

The Scottish Independence Referendum (Franchise) Act 2013 referred to in s. 2 made provision for those aged 16 and above to vote in the referendum, whereas the usual minimum voting age in UK elections was 18. This was explained by reference to the national and constitutional significance of the referendum, which, it was argued, justified an extension of the franchise to 16- to 18-year-old voters.

2.

We were therefore in the remarkable position of having devolved legislative competence used to make provision for a referendum which could have brought about a partial breakup of the UK, and an end to devolution in Scotland. When the New Labour government established the devolution settlement in 1998, some members of the Conservative Party objected that it could be a ‘slippery slope’ which could lead to the end of the Union. The final result in the September 2014 referendum did not see this come about, with the Scottish electorate voting ‘No’ to independence from the UK by 55 per cent to 45 per cent, but in the aftermath of the referendum result, the Smith Commission was established to make recommendations to further strengthen devolution to Scotland, to give effect to a commitment made by the leaders of the three main UK parties (who all campaigned against independence) in the days prior to the referendum. The Commission comprised representatives from across the political spectrum, and reported in November 2014. Proposals for change were made across three Heads of Agreement.

Report of the Smith Commission for further Devolution of Powers to the Scottish Parliament

27 November 2014

16. The five political parties have agreed that new powers will be devolved to the Scottish Parliament and to Scottish Ministers. They have agreed to refer to this package of powers as ‘the Smith Commission Agreement.’ These powers are arranged within these heads of agreement according to three ‘pillars’. These pillars are:

pillar 1: providing a durable but responsive constitutional settlement for the governance of Scotland

pillar 2: delivering prosperity, a healthy economy, jobs, and social justice

pillar 3: strengthening the financial responsibility of the Scottish Parliament

17.p. 420 The parties believe that Scotland’s devolution settlement should be durable but responsive to the changing needs and aspirations of the people of Scotland within the United Kingdom. As a result, it may be appropriate to devolve further powers beyond those set out in the heads of agreement where doing so would aid the implementation of the consensus reached by the parties in this report.

18. It is agreed that nothing in this report prevents Scotland becoming an independent country in the future should the people of Scotland so choose.

NOTE: The Scotland Act 2016 was enacted to give effect to these proposals, and transferred significant further powers to the Scottish Parliament. This included the considerable extension of fiscal powers, and control over many aspects of social welfare and employment support (see earlier in this chapter in Section 2C at pp. 396–8). New powers including those over elections (subject in some instances to a super-majority legislative requirement, including in relation to the definition of the electorate), onshore oil and gas extraction, fuel poverty, and renewable energy were devolved, and powers in relation to transport were extended. Two provisions of constitutional significance were also introduced: the statutory recognition of the normal operation of the Sewel convention (discussed earlier in this chapter in Section 2B at pp. 394–6), and of the permanence of the Scottish institutions. In relation to the latter, the Scotland Act 2016, s. 1, amended the existing devolution scheme as follows.

Scotland Act 1998

63A Permanence of the Scottish Parliament and Scottish Government

(1)

The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements.

(2)

The purpose of this section is, with due regard to the other provisions of this Act, to signify the commitment of the Parliament and Government of the United Kingdom to the Scottish Parliament and the Scottish Government.

(3)

In view of that commitment it is declared that the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum.

Notes:
1.

A similar provision has been enacted with respect to Wales, in the Wales Act 2017, s. 1. There is much scope for debate about the implications of these provisions, which raise questions about the sovereignty of the UK Parliament as well as the devolution system. Is it simply a recognition of constitutional reality in statute, designed to signify commitment to devolution, rather than create any binding legal effects? Or is the referendum requirement set out in s. 63A(3) a legally enforceable limit on the power of future UK Parliaments? See discussion in Chapter 2, Section 3E.

2.

Despite the expansion of devolution implemented following the Smith Commission, the prospect of a second independence referendum remains firmly on the political horizon, as a result of the re-election in 2016 of a Scottish National Party government, and the UK-wide vote to leave the European Union, in which a majority of the Scottish people voted to remain:

Scottish Government, Scotland’s Right to Choose: Putting Scotland’s Future in Scotland’s Hands

December 2019

The people of Scotland (and of the other parts of the UK) have the right to determine the form of government that best suits their needs, and the constitution of the Union state must recognise that. …

p. 421Scotland’s current place in the United Kingdom therefore rests on the principle that it is for the people of Scotland to decide on their constitutional future, and on the outcome of the independence referendum in 2014. The outcome of the 2014 referendum was accepted by both governments, and by the people of Scotland and the UK; but Scotland’s ability to decide its constitutional future cannot be permanently foreclosed by it. Either the people of Scotland continue to have the right to choose—and to decide to make that choice again—or they do not have an effective right to determine their future. Without such a right, Scotland would be bound indefinitely to the Union without any possibility of the people who live here to express their approval, or otherwise. …

To make real this relationship between the people of Scotland and their decisions about their constitutional future, three things need to be enshrined in law—

the right of the people of Scotland to choose the form of government best suited to their needs,

the ability of the Scottish Parliament to choose whether and when to hold a referendum on Scotland’s constitutional future, and

the right of Scotland to become an independent country, should the people of Scotland vote for it to become one.

The material change of circumstances

There are two aspects of events since 2014 that amount to the material change in circumstances that justifies the people of Scotland again considering their place in the UK—

Scotland is set to leave the EU against the wishes of the people of Scotland. Leaving the EU represents a fundamental change in the constitutional arrangements of the country, which will be particularly damaging to Scottish interests and which will take place without the support of the people of Scotland.

The approach of the UK Government to the process of leaving the EU has demonstrated that the views and interests of Scotland can and will be set aside, despite claims that the UK is a partnership of equals….

The Scottish Government is clear that its preference is for a referendum to be held in 2020. This would allow, in the event of a vote for independence, the smoothest transition to an independent Scotland taking its place as a member state of the European Union.

Notes:
1.

The UK government rejected this call for a second independence referendum in 2020. The Prime Minister Boris Johnson wrote to the First Minister Nicola Sturgeon in January 2020:

‘I have carefully considered and noted the arguments set out for a transfer of power from the UK Parliament to the Scottish Parliament to allow for further independence referendums.

You and your predecessor made a personal promise that the 2014 Independence Referendum was a ‘once in a generation’ vote. The people of Scotland voted decisively on that promise to keep our United Kingdom together, a result which both the Scottish and UK Governments committed to respect in the Edinburgh Agreement.

The UK Government will continue to uphold the democratic decision of the Scottish people and the promise that you made to them. For that reason, I cannot agree to any request for a transfer of power that would lead to further independence referendums.’

2.

Elections to the Scottish Parliament took place in May 2021—the SNP government having won a further term in office presents a major challenge to the UK government’s position, since by analogy with 2011 and the first independence referendum, the election of a majority of MSPs from pro-independence parties would appear to create a mandate to hold a second referendum. If the UK government continues to refuse to grant the Scottish Parliament the power to hold a second independence referendum, there will be debate about whether it is already within the competence of the Scottish Parliament to hold an advisory or consultative referendum on independence. A Bill to authorize this would inevitably be challenged by the UK government in the Supreme Court, pushing incredibly contentious political issues into the legal realm. An initial attempt to establish the legality of such legislation was rejected as hypothetical, premature and p. 422academic in the Scottish courts. In Keatings v Advocate General [2021] CSIH 25 the Inner House did not therefore consider the merits, but indicated that the issue would need to be settled via statutory interpretation rather than wider constitutional principles. Lord Carloway’s comment that ‘[v]iewed in this way, it may not be too difficult to arrive at a conclusion’ suggests it might be difficult for any Scottish legislation to be defended. Even if a consultative referendum were lawful, Unionist parties could stage a boycott to delegitimize the result. Consequently, as McCorkindale and McHarg have argued, ‘Whether there is a second referendum—and if so, on what terms—is a political question that will be resolved in the political arena. … a referendum that has a clear legal basis, agreed to between governments, that is regulated by law and consistent with democratic and rule of law values is the surest—perhaps the only—way to deliver a result that is fair, decisive, and accepted as legitimate at home and abroad’ (‘Constitutional Pathways to a Second Scottish Independence Referendum’, UK Constitutional Law Association Blog, 13 January 2020).

Questions
1.

Imagine you are a judge in the UK Supreme Court. If the Scottish Parliament legislated for a non-binding referendum on independence, what legal arguments would you need to consider to decide whether this would be lawful or not? What would you decide? What would the wider political and constitutional consequences of your decision be?

2.

If Scotland were to become an independent country, and established a written constitution as the Scottish Government has proposed, do you think this would have an impact on debates as to whether the UK should codify its constitution?

3.

Has the more extensive devolution to Scotland in the aftermath of the 2014 independence referendum created a durable and fixed settlement for the future? If Scotland voted to remain in the UK at a second independence referendum, should any further structural change to the Union be considered, for example, a federal model based on even further devolution of powers to national legislatures and governments? See the Welsh Government’s proposals discussed in the next section on this point.

B: Welsh proposals for reform to devolution

As discussed earlier, the Scotland Act 2012 greatly extended the fiscal powers of the Scottish Parliament and Government. The 2012 Act was enacted in response to recommendations made by the Calman Commission; a similar commission—known as the Silk Commission—was subsequently established in Wales to consider whether the fiscal powers of the Senedd and Government ought to be extended.

Commission on Devolution in Wales, Empowerment and Responsibility: Financial Powers to Strengthen Wales

November 2012, paras R1–R4, R26–R27

Recommendations

R.1. The current funding arrangements for the Welsh Government do not meet the requirements of a mature democracy and are anomalous in an international context. The funding model of a block grant and some devolved taxes best meets sound principles for funding the Welsh Government. We therefore recommend that part of the budget for the Welsh Government should be funded from devolved taxation under its control.

R.2. Business rates should be fully devolved subject to the Welsh and UK Governments agreeing the details and assessing any risks involved.

R.3. Stamp Duty Land Tax should be devolved to the Welsh Government with Welsh Ministers given control over all aspects of the tax in Wales. A fixed deduction should be made to the block grant with the value of this agreed between the Welsh and UK Governments taking due consideration of the volatility of receipts.

R.4.p. 423 Landfill tax should be devolved to the Welsh Government with Welsh Ministers given control over all aspects of the tax in Wales. A fixed deduction should be made to the block grant with the value of this agreed between the Welsh and UK Governments taking due consideration of the declining taxable base. …

R.26. Devolution of income tax should be subject to a referendum in Wales. Provision for such a referendum should be contained in the Act which introduces tax and borrowing powers.

R.27. A new Wales Bill should be introduced in this Parliament to devolve tax and borrowing powers. …

Notes:
1.

The extent to which the Silk Commission’s recommendations were influenced by the further devolution of financial power to Scotland via the 2012 Act is clear. Yet in some respects, the Silk Commission proposals went further: one key example of this was R.16 (d), in which it was proposed that the Welsh Government should have the power to vary the different rates of income tax independently of one another, in contrast to the more restrictive Scottish ‘lockstep’ approach established by the 2012 Act (whereby the rate of each tax band must be increased or decreased by the same amount, keeping the difference between bands the same as in relation to UK income tax). Indeed, this more expansive power to vary income tax rates—including the differences between the basic, higher, and additional bands—has now been devolved to Scotland by the 2016 Act, and has been in effect since 2017/18 (see earlier in this chapter in Section 2C at pp. 396–8). The report of the Silk Commission demonstrates how the asymmetrical devolution of power in the UK can be used to justify the ‘levelling up’ of devolved power overall—the differences of power between nations can be used as a basis for seeking extended competence where it is lacking, in multiple directions.

2.

The recommendations of the Silk Commission were implemented in the Wales Act 2014. In addition to devolution of taxation and borrowing powers, a particular innovation—as recommended by the Commission—was s. 12, which made standing provision for income tax powers to come into force if approved at a referendum of the people of Wales. Nevertheless, the pace of change to devolution is such that this requirement has been removed by the Wales Act 2017, s.17—this provision will allow the income tax powers to commence without approval at a referendum in Wales.

3.

Following the Wales Act 2017, a key issue has been whether a separate legal jurisdiction should be created for Wales. This was one of a number of recommendations made by the Thomas Commission, chaired by the former Lord Chief Justice Lord Thomas of Cwmgiedd:

Commission on Justice in Wales, Justice in Wales for the People of Wales

October 2019, paras R1–R4, R26–R27

The long-term vision for the future of justice in Wales

27. … The fundamental problem lies in the split between two governments and two legislatures of responsibilities for justice on the one hand and social, health, education and economic development policies on the other. …

29. Only full legislative devolution, combined with executive powers, will overcome the obstacles of the current devolution scheme. It will:

enable the proper alignment of justice policy and spending with social, health, education and economic development policies in Wales, to underpin practical long-term solutions;

place justice at the heart of government;

enable clearer and improved accountability;

enable advantage to be taken of Wales’ size and ability to innovate, for example by integrating legal aid and third sector advice, bringing health and justice resources together to tackle drug abuse, and providing better means of dispute resolution through ombudsmen services; and

strengthen the constitution of the UK.

30.p. 424 For full legislative devolution to succeed, it will require a full transfer of the funding for the justice system and must be accompanied by the development in Wales of capacity, capability and leadership.

31. The law applicable in Wales should be formally identified as the law of Wales, distinct from the law of England, for the following reasons:

the Assembly has passed distinctive legislation which has incorporated international principles of human rights and sustainable development and established new public roles to promote those rights, including the rights of children, older people and future generations;

further divergence between Welsh law and English law is inevitable as the Assembly passes further laws; and

it is confusing that Welsh law and English law are held to be part of a single legal system, in contrast with Scottish law and Northern Irish law.

Notes:
1.

In a Westminster Hall debate on 22 January 2020, the Justice Minister Chris Philp confirmed that the UK government has rejected the Commission’s recommendations to devolve competence over justice to Wales and to establish a separate legal jurisdiction for Welsh law.

2.

The Welsh Government has called for radical reform of the Union to strengthen the existing devolution settlement. In Reforming our Union: Shared Governance in the UK (2019) the Welsh Government argued that ‘Parliamentary sovereignty as traditionally understood no longer provides a sound foundation for this evolving constitution’ (proposition 1), and called for a holistic approach to constitutional reform based by holding constitutional convention, and consideration of a written constitution (proposition 20). The Welsh Government also called for reform of intergovernmental decision-making through the creation of a UK Council of Ministers (proposition 10), and for the Sewel convention to be ‘entrenched and codified’ with a ‘proper definition and criteria’ governing any exceptions to it (proposition 5).

Questions
1.

Should the combined jurisdiction of the law of England and Wales be abandoned to bring greater clarity to the devolution settlement? Would this have broader constitutional implications for the position of England, given the lack of an English Parliament?

2.

Does the extension of devolution in Wales—both in terms of extended fiscal powers, and the introduction of a reserved powers model—indicate that the asymmetry of the UK’s devolution arrangements is diminishing over time?

3.

Do you support the Welsh Government’s proposals for constitutional reform to the structures of the devolution settlement? Is it more likely that we will see devolution entrenched in a written constitution, or further incremental changes to the devolution system itself?

C: Change to abortion law in Northern Ireland

Northern Ireland has retained a much more restrictive approach to abortion compared to the rest of the UK: abortions were criminalized other than when done to preserve the life of the mother, and so not permitted following rape, incest, or in relation to fatal foetal abnormalities. This has raised a number of legal issues. In 2017 the UK Supreme Court held (by a 3–2 majority) in R (A&B) v Secretary of State for Health [2017] UKSC 41 that the Health Secretary was not required to fund free abortions for Northern Irish women in England on the NHS in light of the devolution of health services to each of the UK’s four nations. After the decision and in response to political pressure in Parliament, the Minister for Women and Equalities, Justine Greening, announced that abortion services for Northern Irish women in England would be provided for free using funding from the Government Equalities Office. A further case brought by the Northern Ireland Human Rights Commission [2018] UKSC 27 challenging the compatibility of Northern Irish abortion law with the ECHR failed on grounds of standing; however, even though p. 425a declaration of incompatibility could not be issued, confusingly a majority of the judges still gave substantive—if technically obiter dicta—judgments concerning the incompatibility of Northern Irish abortion law with Article 8 of the ECHR.

The legal uncertainty has been compounded by the fact that the Northern Ireland Assembly was not sitting between January 2017 and January 2020. As such, there was immense political pressure in the House of Commons, led by Stella Creasy MP, for the UK Parliament to legislate in the absence of the Assembly, and to clarify the uncertainty created by the Supreme Court, by de-criminalizing abortion in Northern Ireland and bringing the regulation of abortion into line with the rest of the UK. Consequently, legislation extending the time limits for a Northern Ireland Executive to be formed by the political parties was amended to address this issue:

Northern Ireland (Executive Formation etc) Act 2019

9 Abortion etc: implementation of CEDAW recommendations

(1)

The Secretary of State must ensure that the recommendations in paragraphs 85 and 86 of the CEDAW report are implemented in respect of Northern Ireland.

(2)

Sections 58 and 59 of the Offences Against the Person Act 1861 (attempts to procure abortion) are repealed under the law of Northern Ireland.

(3)

No investigation may be carried out, and no criminal proceedings may be brought or continued, in respect of an offence under those sections under the law of Northern Ireland (whenever committed).

(4)

The Secretary of State must by regulations make whatever other changes to the law of Northern Ireland appear to the Secretary of State to be necessary or appropriate for the purpose of complying with subsection (1).

(5)

Regulations under subsection (4) must, in particular, make provision for the purposes of regulating abortions in Northern Ireland, including provision as to the circumstances in which an abortion may take place.

(6)

Regulations under subsection (4) must be made so as to come into force by 31 March 2020 (but this does not in any way limit the re-exercise of the power).

(7)

The Secretary of State must carry out the duties imposed by this section expeditiously, recognising the importance of doing so for protecting the human rights of women in Northern Ireland.

(8)

The Secretary of State may by regulations make any provision that appears to the Secretary of State to be appropriate in view of subsection (2) or (3).

(9)

Regulations under this section may make any provision that could be made by an Act of the Northern Ireland Assembly.

(10)

In this section ‘the CEDAW report’ means the Report of the Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW/C/OP.8/GBR/1) published on 6 March 2018.

Notes:
1.

Under this power, the Abortion (Northern Ireland) (No. 2) Regulations 2020 were enacted by the UK government establishing a new regime permitting abortions at any point in the first 12 weeks, in relation to risks to the physical or mental health of the mother up to 24 weeks, and in other cases beyond that including relating to fatal fetal abnormalities. However, following concerns that the commissioning of abortion services necessary to implement these Regulations has not been carried out by the (now-restored) Northern Ireland Executive, the Secretary of State for Northern Ireland has made further regulations giving him powers to direct Northern Ireland’s health services to establish provision for abortions to be carried out (the Abortion (Northern Ireland) Regulations 2021). At the same time, the Northern Ireland Assembly is considering legislation—the Severe Fetal Impairment Bill—which would amend the 2020 Regulations to restrict abortion in cases of ‘severe fetal impairment’, which if enacted would again put Northern Irish abortion law out of line with the rest of the UK.

2.

p. 426 The interventions by the UK Parliament and government—initially to change the law, and now taking powers to direct officials to implement the law if required—raise questions about whether this is an interference in devolved competence. However, the initial intervention by the UK Parliament in an intensely important policy area was made when the Northern Ireland Assembly was not sitting, and now the UK institutions have intervened, the subsequent steps to enforce the amended law in the face of stalling at the devolved level can be readily justified. This example shows that there is a limit to the divergence that is possible within the Union, in particular on major moral issues, despite the existence of devolution. It might also illustrate that there are advantages in terms of clarity, effectiveness, and democratic accountability when it is the UK’s political institutions which require action to be taken in the devolved administrations, rather than waiting for legal challenges to determine (if at all) when specific policy choices are no longer acceptable.

Questions
1.

Are there limits to the asymmetrical, flexible manner in which devolution has been pursued in the UK? Does this example justify the continuing recognition of the UK Parliament’s legislative sovereignty?

2.

Are there any other examples of issues where an intervention by the UK Parliament to impose a change in the law on a devolved matter would be justified? What was more important in the reform of Northern Irish abortion law—that the Assembly was not sitting when the law was changed, or that it is an important moral issue which required intervention from the UK Parliament and government?

D: Common frameworks in the UK after Brexit

The UK’s withdrawal from the EU has had a significant impact on devolution. As discussed earlier, the UK Parliament has amended the devolution statutes so that it can temporarily prevent the Scottish or Welsh Parliaments and the Northern Ireland Assembly from legislating inconsistently with specified parts of ‘retained EU law’ (the content of which will be defined by the UK institutions). Rather than use this power to impose constraints on the devolved legislatures, the UK government aims to agree replacement regimes in areas previously regulated by EU law with the devolved governments where devolved competences are affected. The process of negotiating ‘common frameworks’ has been ongoing subject to principles jointly agreed between the UK and devolved administrations in the Joint Ministerial Committee (EU Negotiations) (‘JMC(EN)’) in October 2017:

Joint Ministerial Committee (Eu Negotiations) Communique
16 October 2017

Principles

1. Common frameworks will be established where they are necessary in order to:

enable the functioning of the UK internal market, while acknowledging policy divergence;

ensure compliance with international obligations;

ensure the UK can negotiate, enter into and implement new trade agreements and international treaties;

enable the management of common resources;

administer and provide access to justice in cases with a cross-border element;

safeguard the security of the UK.

2. Frameworks will respect the devolution settlements and the democratic accountability of the devolved legislatures, and will therefore:

p. 427

be based on established conventions and practices, including that the competence of the devolved institutions will not normally be adjusted without their consent;

maintain, as a minimum, equivalent flexibility for tailoring policies to the specific needs of each territory as is afforded by current EU rules;

lead to a significant increase in decision-making powers for the devolved administrations.

3. Frameworks will ensure recognition of the economic and social linkages between Northern Ireland and Ireland and that Northern Ireland will be the only part of the UK that shares a land frontier with the EU. They will also adhere to the Belfast Agreement.

Policy areas in which common frameworks may be required after Brexit include Air Quality, Animal Health and Welfare, Blood Safety and Quality, Chemicals and Pesticides, Company Law, Driver Licensing, Fisheries Management and Support, Motor Insurance, Public Procurement, Radioactive Substances, and Specified Quantities and Packaged Goods Legislation. Not all policy areas which were previously covered by EU law intersect with the competences of all of the devolved administrations, depending on the extent of their respective powers; similarly, in some areas a legislative response will be agreed, in other areas a non-legislative policy may be appropriate, and in other areas no response at all will be required. There is a legal requirement under the EU (Withdrawal) Act 2018, Sch. 3 para. 4, for the UK government to lay quarterly reports on the progress made in negotiating common frameworks before Parliament—the March 2021 report The European Union (Withdrawal) Act and Common Frameworks: 26 September to 25 December 2020 included a table capturing the anticipated outcomes of the process (p. 16):

Number of policy areas

Northern Ireland intersect

Scotland intersect

Wales intersect

Category 1: No further action

121

117

79

40

Category 2: Non-legislative frameworks

17

17

10

10

Category 3: Legislative frameworks

16

16

16

16

Total

153 (not 154 as one framework appears twice in the tables)

150

105

66

Notes:
1.

The table indicates that in most cases where a policy area which overlaps with devolved competence has been returned to the UK after Brexit no further action will be required—17 non-legislative frameworks are expected to be used to coordinate the exercise of competences between the UK’s four nations, and 16 legislative frameworks (which may be in primary or secondary legislation) are being negotiated. A number of common frameworks have been provisionally approved by the relevant governments and published: these include non-legislative frameworks on Nutrition Related Labelling (October 2020), Hazardous Substances (November 2020), Public Procurement (March 2021), and a common framework combining UK-wide legislation and a policy concordat on Blood Safety (March 2021).

2.

p. 428 More problematic from the perspective of sustaining a relationship between the UK government and the devolved governments which is based on consent was the enactment of the UK Internal Market Act 2020. This legislation established key principles to guarantee open market access across England, Scotland, Wales, and Northern Ireland. In relation to goods, the Act creates a mutual recognition principle (s. 2) and a non-discrimination principle (s. 5)—the overall effect is that regulations introduced in one part of the UK (for example Scotland) could not prevent the sale of goods made in another part of the UK (for example England) even where those goods complied only with English rather than Scottish regulations, except in limited circumstances. This amounts to a potential constraint on devolved competence, given that it makes it difficult, if not impossible, for a devolved legislature to effectively adopt a different (and especially a higher) set of regulatory standards to those operating elsewhere in the UK. The Act has been criticized by the Lords Constitution Committee for being imposed on the devolved legislatures with limited consultation, which ‘risks undermining’ efforts to strengthen the union while ‘reducing trust’ (HL Paper of 2019–21, para. 14). The way in which this legislation interacts with agreed ‘common frameworks’ was also questioned, given market access principles should be unnecessary if common frameworks to manage policy divergences are agreed in all required areas. The Act was amended to explicitly provide that the UK government may use its powers to exclude certain policy areas from the application of the market access principles where they are covered by common frameworks (s. 10(3)) but this provides no guarantee that it will occur.

3.

A further controversial provision in the UK Internal Market Act which suggests that the UK government is increasingly willing to curtail devolved competence is the power in s. 50 for UK Ministers to provide financial assistance to support economic development and a wide range of infrastructure projects in any part of the UK, including in areas which cut across devolved subject matters, without the approval of the devolved administrations.

4.

The Welsh Government announced in January 2021 that it would seek judicial review of the Internal Market Act—however, given it is an Act of the UK Parliament, there is no obvious legal ground on which to challenge its validity, due to parliamentary sovereignty (see Chapter 2). The Welsh Government argued that as the Government of Wales Act 2006 is a constitutional statute, it can only be amended explicitly, and so any changes to devolved competence implied in the operation of the 2020 Act’s market access principles are ineffective to reduce the powers of the Senedd. However, there are key difficulties for this legal challenge: the Internal Market Act does not directly modify devolved competence, and it is the clear and necessary implication of the 2020 Act that the market access principles will impact on the legal effects of devolved legislation. It seems difficult for the courts to interpret the devolution regimes in such a way as to protect them from the effects of such legislation.

In April 2021, the Divisional Court refused the Welsh Government permission to apply for judicial review on the grounds that this challenge was ‘premature’, because ‘it is better and more appropriate for the issues concerning the effect of the provisions of the 2020 Act on the legislative competence of the Senedd, and the appropriate means of resolving any conflict between the two, to be considered in the specific legal and factual context of particular provisions of proposed Senedd legislation rather than by making abstract rulings shorn of any legal or factual context’ (R (Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy [2021] EWHC 950 (Admin), [32]). The Welsh Government has been granted permission to appeal by the Court of Appeal. However, if this is unsuccessful, to avoid being rejected on grounds of prematurity, a future claim will need to be based on a specific piece of legislation enacted by the Senedd which the Internal Market Act has undercut.

Questions
1.

How significant has the impact of the UK’s withdrawal from the EU been on devolution? Think not only about the common frameworks and the Internal Market Act 2020, but (i) other changes made to the devolution statutes to account for retained EU law, and (ii) the decision in the Continuity Bill Reference. If the UK government never uses the powers to overrule or limit devolved competences which it has been given by the UK Parliament, does the very existence of those powers in principle still have a destabilizing effect on the union?

2.

Is further reform to the overall architecture of devolution now necessary to address the tensions which have been aggravated by Brexit? See the recommendations of the Dunlop Review below.

p. 429Review of UK Government Union Capability—The Dunlop Review

November 2019

The recommendations in this report aim to ensure that the UK Government is working in the most effective way possible to realise fully all the benefits of being a United Kingdom. It makes the case for a transformation to guarantee that the Union is a mainstream consideration embedded in policy development, decision-making and delivery, and sets out a package of measures to support this change.

This report proposes:

a new Great Office of State in the Cabinet

a new structure supporting the separate offices of the Secretaries of State for Scotland, Wales and Northern Ireland with a single Permanent Secretary

a new fund for UK-wide projects, including joint projects with devolved governments

a new UK Intergovernmental Council (replacing the Joint Ministerial Committee), supported by an independent secretariat

These proposals, taken together, form a coherent plan to make sure that both the Union and devolution sensitivity are a fundamental part of the structure of the UK, delivering better governance for the UK as a whole. Trust, respect and co-operation between governments would be more than aspirations—they would be built into our system of government. Some of this will require increases in resources, and some requires existing resources to be redirected more effectively.

Questions
1.

Should the proposals made in the Dunlop Review be implemented? Or is more fundamental constitutional change required to give greater influence to the devolved administrations in the UK?

2.

How significant has been the impact of devolution on the make-up and constitution of the UK? Has devolution been ‘a disaster north of the border’, as Prime Minister Boris Johnson described it in November 2020?

3.

Is devolution now irreversible? Or does Brexit reveal its vulnerabilities?

4.

Is it still accurate to describe the UK as a unitary state based on a doctrine of parliamentary sovereignty?

5.

Is the way England is governed unsustainable in this changed system? Has your response to the ‘West Lothian Question’ changed since the start of this chapter?