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DEVOLUTION & TERRITORIAL CONSTITUTION REVIEW NOTES.,

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Law

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University Of New England (UNE )

DEVOLUTION & TERRITORIAL CONSTITUTION REVIEW NOTES.DEVOLUTION & TERRITORIAL CONSTITUTION REVIEW NOTES.DEVOLUTION & TERRITORIAL CONSTITUTION REVIEW NOTES.DEVOLUTION & TERRITORIAL CONSTITUTION REVIEW NOTES.

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devolution territorial constitution review notes

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University Of New England (UNE )
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DEVOLUTION AND TERRITORIAL CONSTITUTION REVIEW NOTES

Devolution is a result of its demand = governed by the laws of demand and supply
• Due to unwritten constitution, system of govt may adapt to evolving issues through pragmatic
responses
• Devolution is asymmetrical: different amounts and types of power devolved to different areas
according to demand
o Scotland’s devolution package generous due to 74% support for devolution in referendum
o Wales’ package initially introduced more moderate devolution
o NI’s devolution complicated by conflict: existed throughout C20th until 1970 as violence
escalated, law of supply and demand allowed compromise to be reached by allowing
devolution with a provision enabling NI independence if supported by referendum
• Constitution informed by pragmatism to accommodate diversity, history and traditions
• Reactive and piecemeal, lack of design, coherency and structure England left without
devolvedsystem of govt

Lack of devolution in England threatens the existence of the Union and shows failure to
account for ‘cumulative effect’ of devolution on the Union

Q: What are the practical limitations of this demand-supply model? Why is it difficult to establish
what people of a nation/ region want?
𝗌 Asymmetrical devolution allows greater amounts of power for certain nations, possibly
resulting in conflict between nations
𝗌 Westminster tight grips on power may restrict nations’ access to referendums in order to
discover opinion (Scottish Independence = ‘once in a generation’ event)
𝗌 Westminster retains ultimate power to legislate over all nations, only restricted politically
through conventions, not legally meaning what a nation demands may be overruled

Legislative Competence
• Devolved govts legislative competence demos ability to act independently
o Scottish and NI always possessed general legislative competence = powers granted on
reserve powers basis, legislate on any issue subject to exceptions
▪ NI Act 1998, ss 5-8 and Scotland Act 1998 ss 28-30
▪ Specific legislation e.g., HRA
▪ Subject areas e.g., IR and defence
▪ Cannot enact legislation incompatible w EU law, ECHR, common law constitutional
rights or rule of law standards
o Despite limitations, powers are considerable on extent and type
▪ They are the primary legislatures - amending, repealing and replacing UK Acts that
apply to them different policy directions to rest of UK
o IN CONTRAST: Wales initially only able to exercise powers conferred upon it e.g., where an
Act gave ministers discretionary powers to make decisions, these could be made by
assembly where they affect Wales
▪ Did not allow Wales to pursue a distinct legislative agenda upset as assembly seen
as not useful
▪ GoWA 2006: enact primary legislation, initially on limited basis requiring UK govt’s
blessing
▪ 2011: referendum supporting new system, restriction of UK permission dropped
▪ WA 2017: conferred powers model replaced with reserve powers BUT Wales still has
more powers reserved

, • UK SC – determines whether devolved legislature has legislated within its competence (two elected
govts and legislatures against each other, needs politically independent resolution)
o Judicial resolution included within devolution legislation [SA ss32 and 33, NIA s11, GoWA
s112]
• Devolution created role for SC as constitutional dispute adjudicator
• Legal principles applied by SC:
o Devolved nations’ powers restricted by devolution legislation (UK primary legislation)
o Legislatures democratically elected – may make laws within their competence
o UK parliament retains sovereignty
o SC should not express views on policy – role for elected representatives – instead determine
as matter of law whether devolved statute within competence, interpreted as any other
statute (ordinary meaning)
o Courts aim to achieve constitutional settlement and consistent interpretation coherent
and stable system for devolved legislatures to legislate appropriately

Devolution’s Evolution – Devolution in the UK is exhibited as a process

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