Exam (elaborations)
Devolution
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Exam notes for the topic of devolution
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DEVOLUTION1. System allowing for the diffusion of power within a state by affording a degree of autonomy to the various regions within
the state
2. Brought about by the enactment of the various Devolution Acts in 1998
a. Involved the creation of new legislative and executive institutions in Scotland, Wales, and Northern Ireland
b. Conferral upon them of law-making and administrative powers
3. Devolution in the UK may be regarded as peculiar because it is asymmetrical
a. Different regions have different degrees of devolved powers
b. In the case of England, no power was conferred on it at all
c. This has given rise to the issue of the English Question
Has this changed the UK constitution?
It undeniably has – debate involves extent of the change
Has not changed radically
1. Structure of the constitutional settlement remains relatively unaffected
a. Comparison may be drawn with federal systems
i. Balance of power between federal and state levels is set by and enshrined in the Constitution and, since
the Constitution may only be amended by special procedures, this indicates a high degree of
entrenchment
ii. Moreover, such systems adopt a bottom-up approach
1. Power originated at a state level and was transmitted to the federal level only to a limited
degree and along uniformly agreed lines
2. All states possess the same legal powers as each other
2. However, in the UK, Parliament is still legally sovereign
a. Parliament determined the extent of power to be conferred to the devolved states
i. Arguably reflected in the asymmetry of devolved power
ii. Parliament makes relatively little law pertaining to Scotland and Northern Ireland, while enacting all
primary legislation relating to England (which lacks its own legislature)
b. Continued control of parliamentary sovereignty can be found in the statute book
i. Each of the devolution Acts expressly preserves parliamentary sovereignty
ii. S28(1) of the Scotland Act provides that the Scottish Parliament may make laws, but this must be read
subject to S28(9) which states that it does not affect the power of the Parliament of the UK to make
laws for Scotland
c. Moreover, since devolution was brought about by legislation enacted by Parliament, it is evident that the
institutions thereby created are not its constitutional equals
i. Parliament has the ability to amend any of the devolution Acts or to legislate on anything devolved
should it so wish to
ii. Lord Reed affirmed this in Imperial Tobacco v Lord Advocate (Scotland) [2012], where he stated “the
power of the Scottish Parliament to legislate is limited by the Act of Parliament which established it”
iii. Would theoretically even be open to Parliament to repeal the devolution legislation and abolish the
devolution system
Has changed
1. Structure of the constitutional settlement
a. Idea of the UK as a unitary state governed from the centre becoming increasingly inaccurate
i. Although, as a matter of orthodox constitutional theory, most governmental power continues to
emanate from, and can be recovered by, the UK Parliament, the new constitutional reality is one in
which the UK-tier authorities are part of a network of institutions of government operating at local,
devolved, state and supranational levels
1. Other seats of government have become politically embedded aspects of our constitutional
architecture
ii. Moreover, the use of referendums allowing the electorate to express their views emphasises the
sovereignty of the people in determining the legislative powers of government, which sits
uncomfortably with the idea that Parliament has unrestricted legislative power
1. UK government proposals to decentralise power to 9 regions of England failed in 2004 when
voters in a referendum in 1 region decisively rejected the idea
iii. Rawlings: the “new constitutional architecture of the UK is rightly seen as lopsided”
b. It must be noted that devolution is ultimately an ongoing process
i. Feature of our unwritten constitution: given its flexibility and the lack of entrenchment, this means that
there can be further devolution
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