Developments in devolution

Devolution; a process  rather than an event. 

Devolution and the Pandemic 

Has devolution been a success?

Case study The Gender Recognition Bill and Devolution  2023



Wales

Following a referendum in 2011, the Assembly gained primary lawmaking powers in relation to specific subjects without involvement from Westminster or Whitehall. The UK Government established the Silk Commission to consider the future of the devolution settlement in Wales. The Assembly passed the Tax Collection and Management (Wales) Act 2016, in preparation for exercising the taxation and borrowing powers devolved by the Wales Act 2014. 

2018 saw the commencement of reserved powers model of devolution under the Wales Act 2017. The first Welsh taxes came on stream. In 2019, income tax-varying powers will come on stream, as provided by the Wales Act 2014.he Wales Act 2017 allowed the Welsh Assembly to determine its own electoral system (though not for general elections). Wales also gained increased power over public services.

Nationalist sentiment did not grow in Wales after the first stage of devolution. Nevertheless, demands for further devolution did begin to grow after 2010. The fact that the Liberal Democratic Party was part of the coalition government after 2010 helped the process as the Lib Dems supported further decentralisation of power.


A change of name and increasing the electoral franchise

In July 2016, Assembly Members agreed unanimously that the name of the Assembly should reflect its constitutional status as a national parliament. In December 2017, the Expert Panel on Assembly Electoral Reform recommended lowering the voting age for Assembly elections to 16.

In February, the Llywydd introduced the Senedd and Elections (Wales) Bill on behalf of the Assembly Commission. The Bill proposed to lower the voting age for Assembly elections to 16 and change the name of the Assembly. After the Assembly agreed the Bill in November 2019, the Senedd and Elections (Wales) Act 2020 received royal assent in February 2020 and became law.

On 6 May 2020, the Assembly formally changed its name to Senedd Cymru or Welsh Parliament, commonly known as the Senedd.

Scotland

A Scottish Executive was created under section 44 of the Scotland Act 1998. Following the 2007 Scottish Parliament election, the Scottish Executive was rebranded as the Scottish Government by the new Scottish National Party administration.

The Calman Commission was established by a motion passed by the Scottish Parliament on 6 December 2007.[23] Its terms of reference are: "To review the provisions of the Scotland Act 1998 in the light of experience and to recommend any changes to the present constitutional arrangements that would enable the Scottish Parliament to better serve the people of Scotland, that would improve the financial accountability of the Scottish Parliament and that would continue to secure the position of Scotland within the United Kingdom

 The Independence Referendum. After heavy campaigning by both sides, voting took place on 18 September 2014. Independence was rejected by a margin of 45% in favour to 55% against.

Scotland Act 2016

Based on the Smith Commission's recommendations, the Scotland Act 2016 was passed by Parliament and received Royal Assent on 23 March 2016. The Act set out amendments to the Scotland Act 1998 and devolved further powers to Scotland, most notably:[30]

The Act recognised the Scottish Parliament and a Scottish Government as permanent among UK's constitutional arrangements, with a referendum required before either can be abolished.

Brexit and Devolution

United Kingdom Internal Market Act 2020: While the bill was before parliament, the Conservative MP and Minister for the Cabinet Office, Michael Gove, described the bill as a measure to preserve the territorial integrity of the United Kingdom. The devolved administrations criticised the bill for its re-centralisation of control over commerce, reversing the devolution of power in the United Kingdom Some provisions in Part 5 of the bill, clauses 40 to 45, caused considerable controversy both in the UK and internationally. The breach of international law in the clauses caused an outcry among MPs and the resignation of the government’s top lawyer. (Jonathan Jones)  The House of Lords voted overwhelmingly to amend it to remove the offending elements. Ministers have said these would be restored by the Commons.  There were concerns about their impact on the rule of law. The UK government ultimately withdrew them before enactment. In December 2020, after multiple defeats in the House of Lords, the UK government made changes which they said would allow a certain amount of divergence from the internal market rules for the devolved administrations, where these were agreed through the common frameworks. It also allowed the Lords to remove those provisions of the Bill that were in breach of international law. The act received royal assent on 17 December, and came into force on 31 December.In an editorial in January 2021 concerning rising support for Scottish independence and its potential to break up the union, the Financial Times indicated that the Internal Market Act was an inappropriate response:]

An example of what not to do was the government’s Internal Market Act, in which London retook control of structural funds previously disbursed by the EU.

In a report published in March 2021, the Scottish Government stated that the act is 

"radically undermining the powers and democratic accountability of the Scottish Parliament.....since the EU referendum, "taking back control" has come increasingly to mean wresting control and autonomy from the devolved institutions. Despite the UK Government's stated commitment to work though intergovernmental structures to take an approach to EU exit that recognised the differing needs and priorities of Scotland, Wales and Northern Ireland – and that two of the four UK nations voted decisively to remain in the EU – Scotland's distinct and legitimate interests have been repeatedly ignored''. 


Northern Ireland  

Brexit created a problem in N Ireland because of the boarder. The original protocol proved unworkable, something highlighted when some rules had to be abandoned because the flow of medicines was being disrupted. Not only was it failing to protect the single market, it had also proved problematic for power-sharing self-government.


 A new Brexit deal for Northern Ireland, known as the Windsor Framework, has been adopted by the UK and the EU.

It builds on the Northern Ireland Protocol, which led to significant disagreements between the UK and European Union (EU).

In giving a say over new EU rules to Stormont, unionists have the degree of sovereignty they crave. The “Stormont brake” allows for the UK to stop new single market rules being adopted in Northern Ireland. Continued divergence between the UK and the EU would be likely to gradually harden the sea border over time, presenting a headache for Brussels, keen to protect the single market. 


The deal was approved by the UK Parliament, and formally adopted by the UK and the EU.

However, Northern Ireland's largest unionist party, the Democratic Unionist Party (DUP), voted against it.

DUP leader Sir Jeffrey Donaldson said the party has concerns about the Windsor Framework, but it would "continue to work with the government on all the outstanding issues".

The party also rejected the original protocol, and is still refusing to take part in Northern Ireland's power-sharing government until its concerns are addressed.


'Northern Ireland is in the unbelievably special position - unique position in the entire world - in having privileged access not just to the UK market… but also the EU single market' 'Nobody else has that. No one. Only you guys, only here’ Rishi Sunak hails his Brexit deal 

 

 The supreme court’s Scottish independence ruling 2022

Can the Scottish parliament legally hold another referendum without Westminster’s approval? This comes after Scotland’s chief law officer, the lord advocate, Dorothy Bain, referred this question to the court at the request of Scotland’s first minister, Nicola Sturgeon.The Scottish government argued that such a bill – and the referendum it would sanction – was within Holyrood’s powers because the vote would merely be consultative, and not have any immediate consequences. Independence would be achieved through lengthy negotiations, as happened with Brexit.

The UK government argued the polar opposite – that all constitutional law-making is reserved to Westminster – and also suggested that the application should be rejected because it is a draft bill with no legal standing.

But the court ruled unanimously that she does not have the power to do so because the issue is reserved to Westminster.

The UK government has refused to grant formal consent for a referendum.

Court president Lord Reed said the laws that created the devolved Scottish Parliament in 1999 meant it did not have power over areas of the constitution including the union between Scotland and England.

These issues are the responsibility of the UK Parliament, he said, and in absence of an agreement between the two governments the Scottish Parliament is therefore unable to legislate for a referendum.

He also rejected the Scottish government's argument that any referendum would simply be "advisory" and would have no legal effect on the union, with people only being asked to give their opinion on whether or not Scotland should become an independent country.


The Sewel Convention applies when the UK Parliament wants to legislate on a matter within the devolved competence of the Scottish Parliament, National Assembly for Wales or Northern Ireland Assembly. Under the terms of the Convention, the UK Parliament will “not normally” do so without the relevant devolved institution having passed a legislative consent motion. That convention, commonly known as the Sewel convention, has become an important principle underpinning UK devolution. It represents a tacit understanding that the devolved institutions, each of which was founded on popular consent in a referendum, have primary democratic and political authority over laws within their areas of competence. This has given the devolved institutions some leverage in seeking to influence UK legislation and has reduced calls for a separate process of law making for laws which apply differently across devolved parts of the UK e.g EVEL English Votes for English Laws The passing of the EU (Withdrawal) Act 2018 without the Scottish Parliament’s consent marked the first time that the convention had been set aside by the UK Parliament.  Defending the decision to proceed without the consent of any of the devolved legislatures, the Chancellor of the Duchy of Lancaster, Michael Gove, acknowledged that it was:

“a significant decision and it is one that we have not taken lightly. However, it is in line with the Sewel convention… The Sewel convention—to which the government remain committed— states that the UK Parliament ‘will not normally legislate with regard to devolved matters without the consent’ of the relevant devolved legislatures. The circumstances of our departure from the EU, following the 2016 referendum, are not normal; they are unique.”







What impact has devolution had?

The Scottish National Party grew in strength in the Scottish Parliament and Plaid Cymru gained a foothold in power in Wales, differences did begin to emerge. Meanwhile, in Northern Ireland, devolution was hugely significant, not least because the minority Republican community now enjoyed a share in political power

These are important differences, but the more significant distinctions will come once financial powers are devolved. With the ability to levy their own taxes and the freedom to spend the revenue as they wish, the devolved authorities will have the power to introduce more fundamentally distinct policies.

 It was assumed that devolution would reduce nationalist sentiment and prevent the break-up of the United Kingdom. In Scotland this has certainly not happened. In fact nationalism has grown, not declined in Scotland. In Wales there has never been great enthusiasm for independence and this remains true. Whether devolution is responsible for the continued indifference to nationalism is difficult to assess.

Westminster has accepted that  it will not impose legislation in devolved areas. The Scotland Act 2016 established in statute that Westminster cannot legislate in devolved areas without consent, and recognised that the devolved institutions are permanent features of the UK’s constitutional landscape. It further constrains parliamentary sovereignty by stating that devolution can only be overturned by a referendum (i.e. through popular sovereignty).

The devolved institutions of Scotland, Wales and Northern Ireland have introduced policies which differ from those pursued by the UK government for England. Policy divergence was evident in health and education before devolution and has become more pronounced since  The Scottish Parliament’s new powers on tax and spending raise the prospect of further divergence within the UK welfare state. Policy differences may be regarded as positive because the devolved institutions have responded to the concerns of their electorate. Policies such as the ban on smoking in public places in Scotland and charges for using plastic shopping bags in Wales were taken up subsequently by other governments. However, divergence may also undermine the principle of equal rights for UK citizens. 

Brexit and Devolution

 Brexit is a major constitutional change that is going to fundamentally change the way Britain works. Although 52% of voters chose to leave the European Union in 2016, this was not uniform across the United Kingdom. The results in various areas were: 

Scotland - 38% voted to leave 

Wales - 52.5% voted to leave 

London - 40% voted to leave 

Northern Ireland - 44% voted to leave 

This means that only in Wales and England did a majority of voters choose Brexit. This causes problems, as Scotland, London and Northern Ireland are going to have to accept major constitutional changes which their voters did not mandate. This could lead to greater calls for devolution, or even independence, to stop these areas suffering the perceived problems that leaving the European Union would bring. 

How does devolution create ‘legislative laboratories’? 

One of the potential benefits of devolution is the creation of ‘legislative laboratories’. This means that policies can be tested in one devolved area before they are considered for introduction elsewhere. There are some examples where this might have been the case in the UK: 

Smacking - In 2020 the ‘smacking’ of children was made illegal in Scotland. As of 2022, it will also be illegal in Wales. When considering the proposed law the Welsh Parliament relied on much of the research that had been done for the Scottish Parliament when they considered this issue. Just like Scotland, rather than introducing a new law, the Welsh Parliament decided to remove the ‘reasonable chastisement’ defence from legislation around Common Assault. This decision was taken having considered the legislation in Scotland. 

Smoking Ban – In 2006 the Health Act was passed by the UK Parliament. This saw smoking outlawed in public spaces in Britain from July 2007. During the debate on this bill reference was made to evidence from Scotland where public smoking had already been banned before the debate took place. 

Organ Donor Opt Out – In England the new system of ‘opting out’ from Organ Donorship came into effect in March 2021. However, this system had already in Wales since 2015. This gave lots of opportunity for the UK Government to assess how significant the positive impact of this policy might be.

 Voting Age – In Scotland, the voting age (for devolved elections) was lowered to 16 in 2015. In 2019 the age was also lowered to 16 in Wales. This followed a consideration of the positive effects on youth turnout this had produced in Scotland. 

Carrier Bags – Wales became the first country in the UK to bring in a policy that shops must charge a levy for single-use plastic bags. By 2014, use of single-use plastic bags had dropped by 71%. This policy was adopted in both Scotland and by the UK Parliament in 2015. 

How successful has devolution been to the nations of the UK? Many arguments exist over whether or not Devolution has been a success for the different nations of the UK: