Unit 6 Flashcards
(18 cards)
Devolution - Unitary vs. Federal State
Unitary State: Power concentrated at the centre, with a single sovereign legislature (e.g., UK).
Federal State: Constitution divides powers between federal (central) and state (regional) governments (e.g., USA, Germany). Federal government cannot legislate on matters exclusively allocated to states.
In the UK, Parliament has delegated powers to devolved legislatures, but legally retains the power to revoke those powers and can still legislate on all devolved matters, overriding the devolved legislatures.
Scotland - Legislative Powers (Reserved Powers Model)
The Scotland Act 1998 devolved to the Scottish Parliament all matters other than “reserved matters.” This means the Scottish Parliament has power to legislate on everything not expressly reserved to Westminster.
Examples of Devolved Matters: Health, education, much of civil and criminal law, local government.
Examples of Reserved Matters (retained by UK Parliament): Constitution, foreign policy, defence.
Scotland - Extended Legislative Powers (Post-2014 Referendum)
Increased Tax-Raising Powers:
Since 2015: Scottish Landfill Tax (replaced UK Landfill Tax), Land and Buildings Transaction Tax (replaced UK Stamp Duty Land Tax (SDLT)).
Since April 2016: Power to set a different Scottish Rate of Income Tax (SRIT).
Since April 2017: Power to set income tax band thresholds (excluding personal allowance) and rates for non-savings/non-dividend income of Scottish taxpayers.
Intends to levy Air Departure Tax (ADT) to replace Air Passenger Duty.
Scotland - Legislative Competence - Limitations
Form part of the law of any territory other than Scotland.
Relate to reserved matters.
Modify certain protected enactments, including specific provisions of:
Union with Scotland Act 1706/Union with England Act 1707 (trade freedom).
European Communities Act 1972 (until transition period ended).
European Union (Withdrawal) Act 2018 (EUWA 2018).
Human Rights Act 1998 (HRA 1998).
Are incompatible with the ECHR (and, until the end of transition, with EU law).
The Scottish Parliament can amend/repeal UK Acts if within legislative competence, but only for Scotland.
Who heads the Scottish Government? How are they appointed?
Head: The First Minister (currently John Swinney), usually the leader of the largest party in the Scottish Parliament. Appointed by the Monarch.
Wales Act 2017
Changed to a “reserved powers model” (same as Scotland/NI). Senedd now has power to legislate on all matters not explicitly reserved to Westminster.
Legislative Competence Limitations (similar to Scotland): Act is not law if outside competence. Restrictions include:
Relating to reserved matters.
Modifying certain entrenched legislation (e.g., HRA 1998).
Incompatible with ECHR (or EU law until transition ended).
Interpretation (GWA 2006, s 154(2)): Provisions should be interpreted as being within competence if possible.
What was the purpose of the Good Friday (Belfast) Agreement?
Culminated from multi-party negotiations to end “the Troubles” (sectarian violence). Approved by referendums in NI and RoI.
Key Constitutional Change: Northern Ireland Act (NIA) 1998, s 1, provides that Northern Ireland shall not cease to be part of the UK without the consent of a majority of its people voting in a referendum. (Irish Constitution also amended to recognise this).
Northern Ireland Executive (Power-Sharing)
Unique Composition: Does not chiefly consist of ruling party members. NIA 1998 provides for power-sharing between different communities (“Nationalist,” “Unionist,” “Other”).
Appointment:
FM: Nominee of largest political party of largest political designation.
DFM: Nominee of largest political party of next largest political designation.
They hold office jointly and have equal status (if one resigns, the other ceases).
The Role of the Supreme Court in Devolution
The Supreme Court is the final arbiter of whether legislation passed by devolved legislatures is within their legislative competence. Ministers’ and Presiding Officers’ statements are not conclusive.
Three Ways for Involvement:
Reference by a devolved or UK law officer: Law officers can refer a bill (passed by devolved legislature but not yet assented to) to the Supreme Court for a ruling on its competence (e.g., Scotland Act 1998 s 33, GWA 2006 s 12, NIA 1998 s 11).
Appeal from certain higher courts: Appeals from superior courts in England/Wales, Scotland, and Northern Ireland.
Reference from certain appellate courts.
Supreme Court: Referring a Bill - Case Examples
Agricultural Sector (Wales) Bill [2014]: SC ruled the bill (regulating agricultural workers’ wages) was within Welsh Assembly’s competence as it “related to” agriculture (devolved matter), despite also touching on employment (reserved). Purpose of bill was key.
On what grounds can Acts of the devolved legislatures be challenged in the Supreme Court? Give a case example
Challenge Grounds (AXA General Insurance v Lord Advocate [2011]): Acts of devolved legislatures can normally only be challenged on grounds they exceed legislative competence (e.g., covering a reserved matter, violating ECHR).
Non-Reviewable Common Law Grounds: They generally cannot be challenged on common law grounds like irrationality or unreasonableness.
Reason: It would be inappropriate for judges to substitute their opinions for a democratically elected legislature’s views.
Memorandum of Understanding (MoU):
Agreed in 1999, updated periodically. Aims to coordinate the overall relationship between the UK Government and the devolved governments.
Joint Ministerial Committee (JMC):
A set of committees of ministers from the UK and devolved governments.
Relationships: JMC Sub-committees & Dispute Resolution
Active Sub-committees:
JMC Europe: Forum for discussing EU policy affecting devolved areas (role diminishing post-Brexit).
JMC EU Negotiations (JMC (EN)): Set up for UK’s withdrawal from EU, involving devolved administrations in UK approach (e.g., discussions on EUWA Bill).
UK Internal Market Act 2020
Passed after Brexit to ensure no internal trade barriers came into being within the UK, particularly as devolved legislatures gained competence over areas like agriculture/environment previously governed by EU law.
Twin Principles:
Mutual Recognition: Goods/services lawfully sold in one part of the UK can be legally sold in all other parts (e.g., Scottish Government cannot exclude goods meeting English standards, even if lower).
Non-Discrimination: Prohibits devolved governments from enacting regulations that discriminate directly or indirectly against goods/services from other UK parts.
