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UO Constitutional Law Devolution Notes
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This is a comprehensive and detailed note on devolution for Constitutional Law. Essential!! To your success in academics!!
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DEVOLUTION**The biggest constitutional crisis in the next few years will come from devolution. It has been an ignored
and overlooked topic. The mess of devolution still creates problems today.
BRIEF SUMMARY OF THE EMERGENCE OF THE PARTS OF THE UK
Types of state: (think as a spectrum and not definite lines)
Federal States: the constitution divides power between the centre and the regions (Germany,
America). There is almost always a written constitution, a constitutional court with power of judicial
review that can strike down legislation, and a second chamber of national Parliament that represents
the regions in some way.
Unitary States: All of the constitutional power is allocated to the centre who may then devolve power
to the regions. The UK is normally regarded as a unitary state but this is not definite. There is no
need for a written constitution, strong judicial review, or a second chamber of national legislature for
the regions. The centre could if it wished take the power back from the regions.
The UK is a unitary state but this is more of a spectrum. The UK is moving towards a more federal state.
Because in reality it is impossible to see power withdrawn from the devolution settlements.
If the UK became a full federal state there would be a need for a written constitution, the judges to exercise
judicial review and a reform of the House of Lords which represent the regions (proposition of Ed Miliband).
Confederations: A union of states that come together for the sovereignty of certain areas. Centre has
a limited power to act and the states can take back this power at any time. In some accounts the EU is
a confederation (in view of German court; HS2; members states can withdraw power any time) but in
the view of European Courts it is more of a federal system.
BASIS OF THE UNION
UK has come together because there are benefits in working together. This is a union based on consent.
Wales: this statement is not true. Annexed in 1284. There was a conservative effort to extinguish Welsh
national identity by extending English law to Wales and by setting English to be the language of
administration and law. This was a union of conquest to assimilate and remove Welsh national identity.
Scotland: 1706 Treaty of Union. The statement is relatively more true. Agreement between political elites of
England and Scotland. Compromises were made on each side. Even though ordinary people did not have a
say this was a merger, there was political agreement. The union was based on benefits of economic unity.
Even though Scotland tried to create its own trading empire it failed so a merger with England would be
more beneficial for Scotland to merge. Since this was a union, Scotland has its own legal system different to
English law and protection for Scottish MPs and Lords to hold office in British Parliament. There was a
treaty and agreement.
MacCormick v Lord Advocate – MacCormick challenged the Queen’s title. Is Queen Elizabeth’s title the
second or just Queen Elizabeth? There was Queen Elizabeth first of England but not of Scotland. So in
Scottish law she was just Queen Elizabeth. The principle of unlimited sovereignty of Parliament is a
distinctively an English principle that has no counterpart in Scottish constitutional law. Parliamentary
sovereignty is just a rule of the English legal system. The Scottish legal system and the English legal system
merged created the UK Parliament. There are different rules that define this new institution. Since Scottish
Parliamentary sovereignty did not exist, this could constrain the UK Parliament.
Northern Ireland: The initial control of Ireland was based on conquest. There were long series of wars in
which England tried to impose its will on Ireland. In 1801 Irish Parliament was absorbed to that of UK
Parliament. Catholics were not able to sit in Parliament and this exacerbated the situation. In Ireland the
community is divided between the Catholics and Protestants. Catholics were there historically and
Protestants came in later. Protestants tended to be wealthier than Catholics as they controlled resources, even
though there were more Catholics. The exclusion of Catholics from Parliament only ended in 1922. Civil war
broke out in Ireland and in 1920 UK Parliament divided Ireland between the North and the South. Two
Parliaments were created for the regions. Both of them were supposed to be part of the UK. Northern Ireland
, was dominated by Protestants while South Ireland was dominated by Catholics. Dispute Constitution. Irish
Free State Constitution Act 1922 established the Republic of Ireland as a separate state. The Act stated the
constitution of Ireland is validated by an Act of Westminster Parliament. The counterpart passed by Ireland
stated it has autonomously created the Constitution of the Irish State. Both Westminster and Ireland claimed
power of the constitution arose from them. The Irish were not happy with this. In 1937 Constitution of Eire
was an unconstitutional Act that was approved by Irish Parliament and validated by referendum that was a
deliberate attempt to break the connection from UK Parliament by acting unconstitutionally. The 1949
Ireland Act the UK recognized Ireland as an independent state.
In 1922 Northern Ireland requested to stay part of the UK and this was accepted.
England: shut out of the constitutional dialogue.
Northern Ireland and Scotland were merged by choice but not Wales. This has affected the way in which
regions of the UK perceive themselves. This is one explanation of the vibrancy in Scotland and the re-
emergence of nationalism in Wales. They are recognized as constituent assemblies that are constitutional
agents. Continuation of the Union depends on continued consent and regions can withdraw from the UK if
they wish.
Power should be regionalized because of certain reasons:
National self determination: people prefer and need to govern themselves. Power should track
national boundaries. National groups believe shared history creates a special connection but this is
not always effective. David Miller (national liberalism) states there is value in tying political power
to national groups because they act like a large family and value the connection that they do not have
a connection to those outside. This commonality in interest provides a functioning system of
government. Democracy can only function within this national state because of the sacrifices the
groups make will allow functional government. Even if the national stories are implausible, there is a
benefit to tying constitutional power to national groups because nationals will treat each other better.
Subsidiarity: (supported by Barber) in a democracy decisions should be made by those affected by
them. When issues affect certain people, those decisions should be passed off to those affected. This
can lead to better government since people affected make the decision and have most information
and incentive when making the decision and best interest. It does not matter where the boundaries of
national groups are, what matters is the impact of national groups.
Problems with liberal nationalism: the stories told by nationalists are not always believed since they have a
distorted view of history. Even if the stories do not involve God, there is a distorted view of national history.
There is a requirement that the next generation has to believe the perspective and there has to be persuasion
of the stories. This can affect immigration (common identity should be preserved and immigration should be
prevented to avoid diluting the belief in them) since a common national identity may be distorted by
immigration from non nationals (problem with Turkey joining the EU: dilute the Christian heritage of the
EU). There are two categories of citizens: part of the national group who support the state and those who do
not.
Problems with subsidiarity: It is very difficult to draw boundaries. Different political issues have different
boundaries. If there is a separate constitutional entity for every issue, there would be an infinite number of
constitutional statutes. Neil MacCormick suggests liberal nationalism and subsidiarity are not too far if
Liberal Nationalism provides the grounds for decision making.
There were strong arguments against regionalisation of power in British history, even though now everyone
is a supporter of it. Lloyd George said he was against devolution because the interest of a worker someplace
was relevant to the interest of a worker in another region. Separation of power separates concern.
Constitutional division prevents concern for other regions and is not always effective.
Regardless, New Labour had pressure to move for a system of devolution. In 1998 the Labour party pushed
through radical reforms. There were devolution referendums in which all three nations voted yes (Scotland
and N. Ireland radically since their identities were kept and for Ireland it was also seen as a peace treaty,
Wales with a very little margin). The very little margin in Wales led to very little devolutionary power given
to them. Welsh constitutional identity had been limited as a result of assimilation. By virtue of population
division Wales does not have a central national identity. Scotland in comparison is much more diluted in the
centre which helped them retain a certain national identity.
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