The United Kingdom’s Devolution Arrangements:
From Union to Devolution:
The UK is a product of major national groups resident on the Atlantic archipelago. Pre-devolution the
UK was a unitary state. Scotland, Wales, and Northern Ireland had devolution introduced following
referendums in 1998. “Devolution is a process, not an event”, Ron Davies, SoS for Wales.
Unitary Government in the United Kingdom:
The Creation of the Union:
With the defeat of a Welsh rebellion, King Edward I issued the Statute of Wales 1284, formally
annexing Wales as part of England, and common law was extended to Wales, providing the legal
jurisdiction of England and Wales. Scotland was added in 1291, after Scottish King Alexander III and
his heir died. However, Edward II’s army being defeated at the Battle of Bannockburn in 1314 saw
the English Crown recognise Scotland’s independence in 1328. For 400 years after Scotland was an
independent country, even after the Scottish Stuart Dynasty inherited the Crowns of Scotland and
England in 1603. Then, following bankruptcy, the Acts of Union of 1706-07 were signed, forming the
‘United Kingdom,’ albeit with separate churches, education and legal systems’. Regarding Ireland, it
wasn’t until the Crown of Ireland Act 1542 during the reign of King Henry VIII that a King of England
also assumed the title of King of Ireland. By the eighteenth century, Ireland was a country subject to
the English Crown, but otherwise independent from the UK. The Catholic population was governed
by a protestant ruling class. The Acts of Union 1800 was signed to provide security against French
invasion, but 120 years later only 6/9 of the Ulster counties in the North-east remained loyal to the
UK, with the rest of the country becoming independent as the Republic of Ireland.
The Operation of the Union:
Those in favour of the Treaty of Union in Scotland had achieved protections for Scottish religious and
legal institutions and its education system, rather than its parliamentary practices. Alongside
parliamentary sovereignty, Scotland had to accept Westminster as the hub of Cabinet government,
with ministers responsible for piloting legislation through Parliament. By the 19 th century, this
unitary system of government provided ‘the concentration of the strength of the state in the hands
of one visible sovereign power,’ via Dicey on page 87 of his An Introduction to the Study of the
Constitution. Pre-devolution, for example, Scotland was over-represented in Parliament with 72
MPs, but after devolution became operational this was reduced to 59 MPs in 2005.
The sub-nations were given ‘executive autonomy’ with the Chief Secretary of Ireland conducting the
administrative duties of Ireland up until independence, with Scotland gaining this in 1885 and Wales
in 1951. After the 1960s, executive autonomy meant the Secretary of State for Scotland exercised ‘a
range of powers that in England are the responsibility of nine or ten departments of government,
including health, housing, education, industry and so on’. 1
Pressure on Unitary Government:
Ireland and ‘Home Rule’:
Integrating Ireland fulfilled the UK Government’s goal of protecting against a Napoleonic invasion in
1801, but the Catholic population, partly due to the 1845-9 Great Famine, boosted nationalism. Irish
representatives in Parliament sought ‘Home Rule,’ which was devolution, allowing for an
1
J. Tomaney, ‘End of the Empire State? New Labour and Devolution in the United Kingdom’ (2000) 24
International Journal of Urban and Regional Research 675, 679.
,autonomous Irish legislature to manage Ireland’s domestic affairs, whilst Westminster managed
whole-UK issues, such as defence and currency. Dicey prophesised drastic consequences should
Ireland be granted Home Rule, ‘Irish autonomy… excite or justify claims for local independence
which would unloose the ties which bind together the huge fabric of the British Empire’. 2 Opposition
to the Union was shown in the failed Easter Rising of 1916, and then in the Irish War of
Independence of 1919-21, which saw most of Ireland become independent. The 6/9 north-eastern
Ulster counties that made up Northern Ireland was granted its own devolved Parliament and
executive under the Government of Ireland Act 1920. Sectarian tensions grew due to the Protestant-
Catholic divide from 1969 onwards, and in 1972 the UK Government dissolved Northern Ireland’s
malfunctioning devolved arrangements and restored direct control; administered by the Secretary of
State for Northern Ireland. The ‘Troubles’ would continue for 25 years, and claim 3,500 lives, with
the Good Friday Agreement in 1998 ending the struggle by providing a power-sharing arrangements,
and explicitly recognising that Norther Ireland’s place within the Union depended on the consent of
the people.
Following Ireland’s Lead:
Dicey’s prediction was correct, and movements across the British Empire sought independence from
the imperial British Parliament. Plaid Cymru was formed in 1925, and the SNP in 1934, both being
pro-independence. The territorial Secretaries operated as ‘London’s viceroy’ (mocking label denotes
a leader imposed by imperial decree rather than a legitimate executive-power holder). 3 Plus, due to
the Conservative Party’s dominance in England, and that they never had a majority of seats in
Scotland or Wales since WW2, allowed nationalist parties to argue there is a ‘democratic deficit’.
Then, in joining the EU, it showed that there were functions that independent states cannot perform
adequately in isolation from their neighbouring states. Transferring competences in the UK to the EU
meant the UK had to work in partnership with European countries, with this being used by Welsh
and Scottish nationalist parties to show they could do the same with England post-independence. An
EU guiding principle is subsidiarity, whereby centralised authority should be reserved for the
functions that cannot adequately be exercised in local government. Members states have a say in
how many EU provisions are transposed in domestic law.
Slow Progress towards Devolution:
Growing Scottish and Welsh nationalism in the 1960s led to the Kilbrandon Commission (1973) - lack
of agreement among the 12 commissioners in its published report, and not successful for single set
of devolution arrangements.
After nationalist gains in the late 1960s, the Labour Government created a Royal Commission on the
Constitution, and in 1973 it reported back recommending that directly elected assemblies with some
law-making powers should be established in the sub-nations. However, the resulting Acts were a
watered-down version of the Commission’s proposals, with Westminster controlling the legislature’s
funding through block grants via the Barnett Formula. Plus, English Labour backbenchers also
introduced a provision that 40% of the registered electorate needed to support devolution in the
relevant referenda. Neither referendum met the 40% requirement, and devolution plans were
scrapped (e.g., in Scotland 52% supported devolution, but that amounted to only 33% of the
registered electorate in the 1979 referendum).
2
A. Dicey, England’s Case Against Home Rule (John Murray, 1886) p. 134
3
M. O’Neill, ‘Great Britain: From Dicey to Devolution’ (2000) 53 Parliamentary Affairs 69, 70.
, The 12 Thatcher years saw her regard devolution as ‘an extra level of bureaucracy’ 4 when it came to
her centralised reform agenda, but resentment against the unitary government grew, and the
Conservatives went from having 50% of constituencies to 15%, losing them all in the 1997 New
Labour win. In 1989, Labour, the Lib Dems, trade unions, and church leaders formed a Constitutional
Convention 1989-1995 to discuss Scotland’s future. The Conservatives (fear of Union collapse) and
SNP (distract from full independence).
Consequently, the report, ‘Scotland’s Parliament, Scotland’s Rights’ proposed a 129-member
Scottish Parliament, which would serve as New Labour’s devolution proposals after their 1997
landslide win. The actions of prominent Conservatives likely also fostered nationalist sentiments,
with John Redwood as Secretary of State for Wales under John Major famously refusing to learn the
Welsh anthem or sign documents prepared in Welsh.
The Scottish Constitutional Convention, Claim of Right for Scotland:
“We, gathered as the Scottish Constitutional Convention, do hereby acknowledge the
sovereign right of the Scottish people to determine the form of Government best suited to
their needs, and do hereby declare and pledge that in all our actions and deliberations their
interests shall be paramount.”
“We further declare and pledge that our actions and deliberations shall be directed to the
following ends: to agree a scheme for an Assembly or Parliament for Scotland; to mobilise
Scottish opinion and ensure the approval of the Scottish people for that scheme; and to
assert the right of the Scottish people to secure the implementation of that scheme.”
Devolution and Federalism Compared:
Unitary: single legislature, single government, to exercise legislative power across the whole
country (France, Italy, Sweden, Japan, New Zealand). Local bodies are created/abolished by
the central authority, with no entrenched protections. Historically the UK was a unitary
state.
Federal: division between central and regional authority are not subject to unilateral change
by either institution. USA have federal and state institutions, with Canada having federal and
province institutions, with entrenchment existing (USA, Germany, Canada, Brazil, Nigeria).
The devolution enacted was intended to preserve the Westminster Parliament’s overarching
authority. Canada, Germany, and the USA use federalism, whereby constitutional separations
between central government functions (defence, foreign relations, currency) and the regions,
provinces, and states (internal affairs) occur. The Supreme Court in these countries would rule on
instances where these constitutions may have exceeded their remit, but due to the UK’s
parliamentary sovereignty, no restrictions apply to the Westminster Parliament.
Arden LJ showed the distinction between the UK’s devolution arrangements and federalism,
‘Westminster Parliament had not given up its sovereignty… it could restrict or revoke the power that
it has given to the devolved administrations… there is no provision for judicial review… the only
qualification to that principle is if the court decides that the legislation of the Westminster
Parliament violates Community law’.5
Plus, devolution does not require all regional institutions to maintain the same functions as one
another, which occurs in federal institutions. The UK has asymmetrical devolution, which Dawn
4
M. Thatcher, The Downing Street Years (Harper Collins, 1993) p. 619.
5
R (Horvath) v Secretary of State for the Environment, Food, and Rural Affairs [2007] EWCA Civ 620, [57].
