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Flashcards in Week 6- Multi-layered government Deck (52)
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1

What was the act of settlement 1707, and what was the effect on Scottish representation??

Both Westminster parliament and Scottish Parliament passed acts to form a union with each other, leading to the creation of the union of Great Britain with a single parliament (Wales was already joined to England)
-Scotland sacrificed its PS in favour of membership of much reduced representation, leading to resentment between unionists and nationalists.

2

What was the government of Ireland act 1920??

It provided for the division of Ireland into Northern Ireland and Southern Ireland, and made provisions for their own home rule. However the provisions were never carried out in Southern Ireland due to the Irish war of independence.
-They were both to remain part of the United Kingdom of Great Britain and Ireland, and their reunification was made possible in the provisions of the act.
-The Northern Ireland settlement continued until 1972 following 'the troubles', leading to the suspension of Northern Irish parliament.

3

What does MacCormick say about the inability to repeal the acts of settlement 1707 and the differences between the former and new parliaments?

-The act of union 1707 was also not like repealing any other act of parliament, despite arguments that a sovereign parliament should be able to do so. The argument against this was that the act of Union was fundamental law, passed by two parliaments, and therefore in setting out the new legislative, judicial and executive branches, they couldn’t simply use powers under a new parliament to change the laws of a prior parliament which differed by name, membership and territorial jurisdiction

4

Where does parliaments current legislative power derive from??

-Derives from both the Scottish and English parliaments which passed the acts of union 1707

5

What does MacCormick say about an acts of parliaments ability to impose legal limits on institutions of whom legislative power has been conferred onto?

Legislative power can be conferred with limits, without allowing anyone else to remove or abrogate the limits to these powers; the act of settlements were passed by distinct English and Scottish Parliaments; not Westminster, and therefore even our sovereign parliament had pre-limited legislative powers conferred onto it without the power to abrogate these limitations (the limitations being the ability to repeal parts of the acts of Settlement)

6

MacCormick v Lord advocate facts and significance?

Facts- MacCormick challenged the ability of the Queen to decide her own title in Scotland, under prerogative powers. The act of union 1707 said that the Queen did not have this power, and a subsequent act in 1953 was inconsistent with the act of union

Significance- The Royal style and titles act 1953 was inconsistent with article 1 of the treaty.
-The Lord advocate won the case, making the argument that the articles of union had nothing to do with the Queens title and that even if some articles in the Settlement were unalterable, article 1 was not.
-However, he did concede that some terms could not be repealed by parliament where express words made them unalterable.

7

Why did the repeal of parts of the act of union cause some problems in MacCormick V Lord advocate??

-The treaty of union 1707 was almost fundamental law passed by two prior parliaments and was binding on the new parliament of GB set up thereafter. Implied repeal of such a statute was not as simple as any modern act of parliament, especially with the articles of the treaty of union deriving from English and Scottish parliaments, rather than Westminster.

8

What arguments does Bell make with regards to the flexibility of our constitution and devolution arrangements??

-Although the UKs governments programme of devolution marked a substantial change from the earlier Westminster-based status quo, it can also be seen within a longstanding tradition in the UK of making constitutional changes organic in response to particular pressures, rather than by sweeping reforms.”

9

What was the main reason for devolution to Northern Ireland??

-This was part of a peace process, involving political actors and civil society faced by violence regarding Irish union and unity with Britain. It was based around transcending the inability to reconcile between Irish nationalist and British Unionist views of the constitution,

10

How does devolution to Northern Ireland look in terms of their parliament?

-There exists a cross-party parliament comprised of nationalists and unionists
-Institutions became owned by both unionist and nationalist members.
-The leader of the larger party (unionist or nationalist) holds first minister whilst the second largest party (the other of unionist or nationalist) hold deputy first minister. Their powers are in fact equal and rely on mutual respect between the two parties for the ongoing operation of their parliament
-These different groups have different ideas about what the sovereignty, political values and territory of the Northern-Irish state should be.

11

How was Scottish devolution legitimised and what constitutional implication did it have?

-Legitimised by a referendum, as they didn’t know what the commons majority would be in passing the act. Arguably the referendum also modified the UK constitution, limiting future parliamentary sovereignty by signalling that a referendum would also be required to dismantle the Scottish Parliament (same with other devolved legislatures)
-The most recent Scotland Act 2017 dictated that Scotland remains a permanent part of the devolution arrangements, and can only leave on account of a referendum; however, the union of UK and Scotland is a reserved matter for WMP, so Scotland are unable to initiate secession even if they hold a referendum.

12

How might asymmetric devolution be desirable given the differences between Scotland, Northern Ireland and Wales?

In terms of asymmetric devolution, the desire appears to lie, from a legal point of view, in the fact that there were different problems between the different states, that could not be mitigated through symmetric devolution.
-Pre-existing social and political tensions that varied between the states called for different terms of devolution in order to mitigate the problems.
-Furthermore these state-specific issues also had to be contended with pre-existing principles of the UK constitution, notably the sovereignty of parliament and how this could be upheld through labours process of devolution.

13

What is the basic theory of subsidiarity?

-Decision making should be done at the lowest level possible, closest to those directly affected by the decisions.

14

What does the European model of subsidiarity say and where is it expressed?
What does It say about the significance of subsidiarity?

-Expressed within art 5 of the EC
-"the community shall take action with the principle of subsidiarity, only and if insofar as the objectives of the proposed action cannot sufficiently be achieved by the member states and can, therefore, by reason of the scale or effects of the proposed action, be better achieved by the community"

-Subsidiarity is a moral principle which is important in allowing states some level of self-determination and autonomy, indicative of different social, political and economical conditions in respective areas which cannot efficiently be catered to via universal decision making.
-The fact subsidiarity is contained within EC treaties suggests it is a favourable principle, by the means of efficiency

15

What does Barber say with regards to subsidiarity and efficiency??

The power of decision making should trickle down to the lower institution UNLESS centralisation results in more efficient gains.
-"it is not enough that centralisation achieves some efficiency" there must be efficiency gains over and above what could be achieved at state level.
-The provisions indicates that it is not enough just to exercise subsidiarity by smaller states or parties of political actors; it must be be by those affected by the decision making.

16

Should subsidiarity dictate that everyone affected by a decision should be involved in it??

-Our system of representative democracy provides a satisfactory trade off between dictatorship and pure subsidiarity (borderline direct democracy), as the parliamentary system provides a formal and refined space for deliberation, in which MPs represent their constituency and transform the impractical deliberation 10s of millions of citizens into a formal debate. For everyone to be directly involved in the process would impede on the efficiency that EU subsidiarity seeks to promote.

17

What fraction of acts apply to England and Wales and what fraction apply to GB?

A third for England and Wales
1/10th for GB

18

How many WM acts apply solely to Scotland, Wales and Northern Ireland and what does this say about the asymmetry of devolution??

Two acts apply to just Scotland
-3 to just wales.
-Northern Ireland had 10 bills in 5 years, reflecting the difficulties of devolution, indicative of the difficult cross-party government and pre-existing political tensions in Northern Ireland

19

How did the content of WM acts for Wales, Scotland and Northern Ireland differ and why?

-WM legislating for Ireland differed to Wales and Scotland in that many acts directed at NI were ‘constitutional’ as they were attempts at trying to get devolution back on track, whilst in Scotland the largest category for WM legislation was criminal bills and in Wales it was health and social care bills.

20

How is the representation of the devolved territories MPs in WM parliament asymmetric?

NI has seen more bills than Scotland and Wales and yet none went through a procedure which gives special voice to Irish representatives (legislative grand committees). Notable constitutional bills went through the commons on second reading, Irish MPs outnumbered massively by MPs from the other 3 territories.

21

How is the legislative scrutiny of the devolved territories in WM parliament asymmetric??

-Specialist legislative procedures developed before 1998 have been retained for welsh and Scottish bills, allowing representatives of the concerned country to dominate the committees in different readings of relevant bills.
-Each devolved territory (plus england since 2015) has a grand committee, but the N Irish committee has had comparatively less use than its Welsh and Scottish counterpart
-The Scottish Grand and Welsh Grand were the bodies responsible for providing this territorial legislative scrutiny. The welsh grand committee has the most use in scrutiny post-devolution, holding bi-annual debates on primary legislation and the queens speech, as well as pre-legislative scrutiny on important welsh bills, notably the NHS (wales) Bill 2002

22

What additional powers did the Scotland Act 2012 and 2016 devolve down to Scotland?

-Scotland Act 2012 conferred further powers to the Scottish government, including the ability to raise or lower income tax by up to 10p, creation of Revenue Scotland to collect taxes of Scottish devolved origin
-Scotland act 2016 devolved yet more powers to the Scottish government, notably the ability to amend sections of the Scotland act which relate to the operation of Scottish parliament and the Scottish government within the UK including control of its electoral system (subject to a two-thirds majority within the parliament for any proposed change)
-further tax controls
-further control over welfare provisions and social security benefits

23

What was significant about the Wales act 2017??

Wales act 2017
-moves Wales from a conferred matters model to a reserved matters model as in Scotland under the 1998 act.
-like the Scottish equivalent, the ability is granted to amend sections of the 2006 act regarding the operation of the welsh assembly and government (subject to 2/3 majority)
-also has the income tax ability to levy taxes by 10p either way, as well as a welsh revenue authority

24

Robinson v Secretary of State for Northern Ireland facts and significance?

Facts- The first minister and deputy of first minister was elected by the Northern Ireland assembly after expiry of the six-week period provided for in the Northern Ireland act 1998 s16(8).

Significance- The 1998 act was to count as a constitution, and although the 6 week period after restoration of devolved government as entailed within the act was not honoured, given the political climate in NI it was better to honour the election results that fell outside the 6 week period instead of holding them again and destabilising politics (take a wider view)
-Such legislation concerning such politically sensitive areas should be read 'generously and purposively'

25

What did Bingham say about the interpretation of the provisions of the devolution acts in order to improve efficiency in the process of devolution?

“these provisions should be interpreted generously and purposively” (wider view)

26

What does Lord Hope say in AXA general insurance with regards to the judicability of Scottish acts of parliament in Scottish courts?

-Lord Hope is of the opinion that sovereign parliament remains with Westminster only, and that whilst the devolution acts make no express exclusion from bringing acts of Scottish parliaments to review in Scottish courts, only in extreme circumstances are Scottish acts amenable for judicial review, and certainly not on the grounds raised by the appellants.

27

For what reason is it argued in AXA that Scottish courts do not need to review Scottish acts of parliament??
(sovereignty of WM parliament and the limits to Scottish Parliament)

-The reason that acts of Scottish parliament are not normally amenable to justiciable review (on the grounds of irrationality, unreasonableness or arbitrariness) as WMP provides a statutory limit on Scottish parliament if a provision is incompatible with human rights. Therefore, WM sovereignty provides for the limits on Scottish parliament, and therefore the Scottish courts do not normally need to play this role.

28

What is the benefit of statutory recognition of the Sewel convention?? (Miller)

The inclusion of the Sewel convention within the latest devolution acts, shows that they are giving recognition to the political conventions, justifying their existence in the harmonious relationship between WMP and its devolved legislatures
-It is a permanent and significant element of devolution, even if it is not legally enforceable.

29

What is the benefit of political conventions governing the devolution process whilst retaining the over-arching sovereignty of our parliament??

-The benefits of this to our devolution set up and the asymmetry of devolution that not only favours different countries in the constitutional arrangement of devolution, but also continues to vest the highest constitutional importance in Westminster parliament; the benefit being the efficiency that can be achieved from withholding powers and matters for which Westminster parliament can (mainly through its own legislative process) make constitutional decisions to uphold its sovereignty, whilst implementing sweeping constitutional change.
-Ensures some level of uniformity and predictability in 'normal times'.

30

Re UK Withdrawal from the EU (Legal continuity) (Scotland) Bill [2018] UKSC facts and significance? (Scotlands reserved powers model)

Facts-The Scottish bill was designed to revert EU competence back to Scottish government after Brexit, as well as continuing to give effect to the continuity of EU law in Scotland; in doing so it was respecting the reserved powers model on which Scottish devolution rested on. This dispute between UK and Scotland over EU law competences meant that Scotland refused a legislative consent motion for the UK withdrawal bill, as it would affect EU competences in Scots law, although the bill was passed anyway.

Significance- -Most of the UK governments arguments for current EU competences reverting back to WM rather than Scotland were rejected, as it was incompatible with the model of ‘reserved powers’ with Scotland act 1998 meant that only reserved matters could not be legislated on or changed by Scotland, and therefore areas that reverted to no competence were to default to devolved competence as they weren’t explicitly reserved (as they were undertaken by the EU).
-Scotland won the case, however the UKs own bill superseded the Scottish continuity bill and changed the reserved powers to bring former EU competences back under Westminster control.