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Intro to Devolution Flashcards

1
Q

describe UK constitutional law

A

the law which creates, regulates, empowers and controls the institutions and processes of government

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2
Q

describe devolution

A

branch of UK constitutional law concerned with territorial distribution, exercise and control of public power

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3
Q

what are the 4 main regional devolutions and their acts

A

-Scotland + Scotland Act 1998
-Wales + Gov of Wales Act 1998/2006
-Northern Ireland + NI Act 1998
-English regions

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4
Q

what was the UK government like before 1997 New Labour Gov

A

-one government and one parliament in the UK

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5
Q

what is the UK government like today after 1997 New Labour gov

A

-Wales and Scotland also have their own parliament and government
-Northern Ireland have their own assembly and executive

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6
Q

what do Masterman and Murray, 2022 argue about devolution

A

-can be seen as an attempt to recognise the complexity of the UK as a country by giving each of its smaller constituent parts some degree of
legislative and administrative autonomy’

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7
Q

when did the devolution process begin

A

-1997 with New Labour gov

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8
Q

describe the beginning of the process of devolution (6)

A

-part of a wider set of constitutional reforms
-bilateral
-asymmetrical but convergent
-created through acts of parliament
-endorsed by referendums
-dynamic and evolutionary process

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9
Q

which of the original devolution statutes has a new statute

A

-Government of Wales Act 1998 –> Government of Wales Act 2006

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10
Q

give 5 reasons for devolving power

A

-growing demands for autonomy
-recognition of multiple national identities
-democracy
-preserve the Union
-preserve parliamentary sovereignty

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11
Q

give 4 reasons why devolution of power was needed in NI

A

-prior experience of legislative devolution (1921-72)
-ending civil conflict (‘The Troubles’)
-key pillar of peace process
-Stand One of Belfast / Good Friday Agreement 1998

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12
Q

why was legislative power not devolved further in England (initially) (4)

A

-size
-differing strength of regional identities
-relationship between English and UK Parliaments?
-lack of popular support for an English gov+parl AND regional gov (eg failed NE Assembly Referendum 2004)

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13
Q

what is an example of lack of popular support for regional government/ devolution in England

A

-failed North East Assembly referendum 2004

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14
Q

give 6 key features of Scottish devolution

A

-Scottish Parliament (129 members)
-Scottish Government
-Most powerful (and stable) settlement
-expanded by Scotland Acts 2012 and 2016
-tax-raising and borrowing powers
-powers over (some) social security benefits

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15
Q

give 6 key features of Welsh devolution

A

-Welsh Parliament/ Senedd Cymru w/ 60 elected members (96 in 2026 election due to Senedd Cymru (Members and Elections) Act
-Welsh Government
-Constant change (Gov of Wales Act 2006, Wales Act 2014 and 2017)
-most limited devolution settlement
-some tax raising and borrowing powers
-remains part of England and Wales legal system

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16
Q

give 5 key features of NI devolution

A

-NI Assembly (parl) (90 members)
-NI Executive (gov)
-power-sharing / consociational executive (NIA 1998, s.16A)
-process for unification with Ireland (NIA 1998, s.1 & Sch 1)
-significant periods of suspension (2000; 2002-07; 2017-20; 2022-24)

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17
Q

give 4 key features of English devolution

A

-NO legislative devolution (yet)
-UK Gov + Westminister Parliament = de facto English gov and parl
-regional (administrative) devolution, but patchwork eg London Mayer and Assembly, Combined Local Authorities
-‘English Votes for English Laws’ (EVEL) (2015-11) (only English MPs would sit for english issues, binned by BoJo)

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18
Q

give 5 examples of regional (administrative) devolution

A

-London Mayor and Assembly
-Combined Local Authorities/ Metro Mayors
-Construction Act 2009
- Cities and Local Government Devolution Act 2016
-English Devolution Bil

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19
Q

what are the powers granted to devolutions called

A

-legislative competences

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20
Q

what are the two types of powers/ legislative competences

A

-devolved competences (granted to devolved regions)
-reserved competences (reserved for westminister for devolved regions to follow)

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21
Q

how are powers/legislative competences determined

A

according to the rules of the act in question
– Imperial Tobacco v Lord Advocate (2012) UKSC 61

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22
Q

what case gives the legal rule that powers must be determined according to the rules of the Act in question

A

-Imperial Tobacco v Lord Advocate (2012) UKSC 61

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23
Q

what power does the UK Parliament retain despite legislative competences

A

-UK Parliament retains power to legislate on any matter

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24
Q

give 3 examples of devolved powers/ competences

A

-health
-education
-housing

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25
give 3 examples of reserved powers/competences
-constitution -foreign affairs -defence
26
what is s.28(1) of the Scotland Act 1998
-Parliament may make laws to be known as the Acts of Scottosh Parliament
27
what is s.29 Scotland Act 1998
-provisions of Acts of the Scottish Parliament are 'not law' of they: - concern matters outside Scotland - Relate to reserved matters - relate to 'protected enactments' - are incompatible with ECHR rights
28
what are the equivalent sections in the GOWA 2006 and NIA 1998 to the SA 1998 s.29
-GOWA 2006 s.108A -NIA 1998 s.6
29
essentially, what does s.29 SA 1998, s.108A GOWA 2006 and s.6 NIA 1998 mean
-provisions in devolved parliaments are not law if: -they concern matters outside their jurisdiction -are related to reserved matters -are incompatible with ECHR rights
30
what is the Sewel Convention (4)
-aka 'legislative consent convention' -the UK Parliament usually wont legislate in regards to devolved issues without approval -key constraint on parliamentary sovereignty
31
give the 2 statutory basis for the Sewel Convention in Scotland and Wales
-SA 1998 s.28(8) -GOWA 2006 s.107(6)
32
is the Sewel Convention non justiciable (3)
-non justiciable -purely political, courts cannot act on it - Miller I (2017) UKSC 5
33
what is the authority for the Sewel Convention being non justiciable
-Miller I (2017) UKSC 5
34
what are the 4 methods/ powers for managing disputes
-Informal political resolution (within or between political parties) -Formal intergovernmental mechanisms (Intergovernmental Relations Review 2021) -Referral to UKSC (legislated in 3 devolved acts) -UK Government ‘veto’ (legislated in 3 devolved acts)
35
give 2 case examples for the reserved/ devolved boundary
-Continuity Bill Reference [2018] -Scottish Independence Referendum Bill reference (2022)
36
what was decided in Continuity Bill Reference (2018)
A Scottish Bill purporting to regulate effects of EU law within devolved areas after Brexit did not ‘relate to’ the reserved matter of ‘international relations’
37
what are the 2 constitutional protections?
-1) Sewel Convention -2) Permanence clauses
38
what is the permanence clause in the SA 1998
-s.63A SA 1998 -makes Scottish Parl + Gov permanent part of UK's constitutional arrangements -signifies UK Parl + Gov's commitments to Scottish Parl+Gov -cannot be abolished unless Scots voted to in a referendum
39
what is the permanence clause in GOWA 2006
-GOWA 2006 Pt A1 (as amended by Wales Act 2017)
40
give 6 challenges to devolution
-Democratic ‘deficit’ -Parliamentary sovereignty -EU withdrawal / Brexit -Sewel breakdown -Devolved / reserved boundary Territory-specific challenges (Northern Ireland Protocol, Referendum deadlock in Scotland, Jagged edge of justice in Wales)
41
give 3 examples of territory specific challenges to devolution
-Northern Ireland Protocol -Referendum deadlock in Scotland -Jagged edge of justice in Wales
42
what problems does the democratic deficit concern (7)
-S+W oft voted diff to rest of country, now vote for themselves but Westminister still supreme so subject to Parl still -Englsih dominance, no influence over Westminister -England doesnt have devolved reps so rep gap -Griffiths (2022) key reason for support for independence
43
what was the decision in Scottish Independence Referendum Bill Reference (2022)
Scottish Bill made provision for ref on Scottish independence ‘related to’ reserved matters of the Union and UKParl due to political consequences
44
explain how Parl Sov is a challenge to devolution
-Sandford and Gormley Heenan (2020) Schrodinger's Devolution -if Parl has legislative supremacy how is this reconciled with devolved autonomy? -devolved legislative autonomy undermind by UKG acting as if nothing changed and Parl still sov
45
how does Dicey describe parliamentary sovereignty
-UK Parl's right to 'make or unmake any law'
46
explain how EU Withdrawal/ Brexit is a challenge to devolution
-unitary state went in EU devolved state left -devolution shaped by EU standards for food/ agriculture -devolved entities wanted to set own standards, UKG wanted centralisation -UK Internal Market Act (2020)
47
how did the gov try to answer the Brexit challenge to devolution
UK Internal Market Act 2020 -intro market principles (mutual recognition and non discrimination) which meant devolved goods could only regulate in their own jurisdiction - gov can spend in devolved competencies -enacted without consent of devolved institions -Morgan&Wyn Jones (2023) signals death of devolution
48
what do Morgan & Wyn Jones argue about EU Withdrawal/ Brexit
-UK Internal Market Act 2020 being enacted without consent of devolved institutions signals death of devolution
49
what arguably started the sewel breakdown
-EU withdrawal
50
what do the UK Constitutional Monitoring Group (2023) argue about Sewel Breakdown
-ignoring devolved consent is becoming normalised not exceptional
51
what did the Institute of Government 2024 find
-28 UK acts of Parliament had consent refusals since 1999 -19 consent refusals between 2019-2024
52
explain how the devolved / reserved boundary challenges devolution
-legislative recognition of Parl Sov in 3 devolved acts merely symbolic until recently -UNCRC Bill Reference = UKSC found legislative recognition restricts devolved govs -eg Scottish Independence Ref Bill
53
explain the territory challenge of NI Protocol to devolution
-Brexit for NI was softer than rest of UK to prevent political turmoil from hard border -Windsor Framework (2023) red v green lane on goods powersharing restored but still contested
54
explain the Windsor Framework (2023)
red v green lane on goods powersharing restored but still contested
55
explain the territory challenge of the Scottish referendum deadlock
-no statutory provision for referendum for independence unlike NI s.1 Sch 1 NIA 1998 -2012 Edinburgh Agreement held ref 2014, no agreement -power still with Westminister to hold ref -involuntary union instead of voluntary?
56
explain the territory challenge of Wales jagged edge of Justice to devolution
-single legal jurisdiction with two parliaments -Welsh person imprisoned in England has no access to devolved competencies eg education or healthcare -Thomas Commission (2017-19) justice arrangements 'unduly complex' and reform includes full devolution -not accepted by gov
57
what is the authority for future reform for devolution
Brown Report (2022)
58
what are some issues with future reform
A form of recentralisation? * Ambiguity re ‘constitutional’ legislation * More power to the Supreme Court? * Implications for other scrutiny functions * Lack of detail on elections * Cautious Labour Party Future reform
59
what does the Brown Report (2022) suggest for reform
-'Assembly of the Nations and Regions' to replace HoLords + has explicit power to reject HoC legislation which affects constitutional statutes +empowers UKSC to decide what a constitutional statute is -Reform Sewel Convention to be legally binding + consent in all circs
60
what does the Brown Report suggest about the Assembly of the Nations and Regions
-to replace HoLords -has explicit power to reject HoC legislation which affects constitutional statutes -empowers UKSC to decide what a constitutional statute is
61
give 6 key issues with the reform suggested in the Brown report
-form of recentralisation/ reinstating PS -what counts as constitutional legislation -more power to UKSC/judiciary (continued since 1997) -narrower scrutiny than current HoLords -no detail on elections -not taken forward by Labour Party
62
how is it determined whether a devolved AoP relates to a reserved matter (meaning it is not law)
-SA 1998 s.19(3) determined by reference to the purpose of the provison having regard to its effecr in all the circs -requires more than 'loose or consequential connection' (Martin v Most (2010)) -no requirement to change law on reserved matters, just effect reserved areas
63
what is Martin v Most (2010) an authority for
-more than 'loose or consequential connection' needed to determine whether devolved AoP relates to a reserved matter

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