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MULTILEVEL GOVERNING CENTRAL ISSUES An important task for a constitutional system is to determine how, if at all, executive and legislative

e power is distributed within a nation state There are a variet! o" wa!s in which this could e achie!ed" o a unitar! state distributes little or no power awa! "ro# national level# o "ederalis# creates distinct sovereign entities within a nation# o devolution $the method chosen in the United %in&dom' is the delegation o" power b! the national level$ which nonetheless reserves ulti#ate sovereign power to itsel"

The United %ingdo# o" Great &ritain and Northern Ireland, as the country(s name su&&ests, was "or#ed as a union o" separate nations Until '((), the United %ingdo# was a highl! centrali*ed state, with i#portant decisions ta+en at national level b! the U% govern#ent and U% ,arlia#ent -ince '((), a process o" devolution is trans"erring executive and legislative powers to three parts o" the United %ingdo#" Northern Ireland, Scotland, and )ales* The .cts o" ,arlia#ent creating devolution have all been a#ended since "irst enacted* The! create a detailed technical "ra#ewor+ and /uestions have arisen about how the courts should approach interpreting the#

England$ b! "ar the largest part o" the United %ingdo#$ has een le"t out o" the devolution process This has given rise to the 0English 1uestion2, with calls "or changes to the wa! the U% ,arlia#ent enacts legislation that applies onl! to England Governing activit! also ta+es place at local level In the United %ingdo#, this tier of govern#ent has been sub3ect to al#ost constant re"or# "or #an! !ears The latest develop#ent$ introduced b! the Localis# .ct 45'', is a +general power o" co#petence2 "or local authorities in England*


Let(s start with a lank piece of paper and an ima&inary a country in Europe* It has a popula,tion of a out -. million people and a landmass of a out ./0,000 km.* )hat system would you desi&n for the concentration or distri ution of e1ecuti!e and le&islati!e power within this country2 3or e1ample, the task of settin& standards for the control of atmospheric pol,lution is etter decided y a lar&e unit rather than left to !ery small areas, as it is ine!ita le that wind will low contamination for a lon& way* 4n the other hand, decisions a out the pro!ision, location, and maintenance of pu licly funded play&rounds for children may e etter decided at 5uite a local le!el, to e responsi!e to the needs of local residents* A method is needed for decidin& where decisions are made*

Unitar! state" one parliament and one &o!t which promote uniformity across the country whilst cannot ha!e different le&al system for particular rural areas 4ne option would e to ha!e little or no distri ution" a single national govern#ent and a single national parlia#ent could e responsi le for almost e!erythin&* E1amples of unitar! states in Europe are the Republic o" Ireland and Greece* A possible advantage of a unitary system is that it pro#otes uni"or#it! across the whole countr! It mi&ht, for e1ample, e thou&ht right "or people to have the sa#e entitle#ent to govern#ent: provided health care, regardless o" where in the countr! the! live

In other respects, uni"or#it! #a! be less desirable" di""erent legal "ra#ewor+s on social housing #a! be better i" so#e parts o" the countr! are sparsel! populated and rural and other parts urban

8ederation" Central &o!t with num er of states distinctly in political authorities which so!erei&n power is di!ided in &o!ernance and le&islation 6normally set in written constitution7 Another option would e to adopt a "ederal s!ste# Countries ased on federal principles in Europe include Ger#an! and &elgiu# .ndrew -cott" 8ederalis# is an organi*ation o" govern#ent in which the authority to &o!ern is divided between a central ;national< govern#ent on the one hand$ and a nu#ber o" constituent regions$ provinces$ states$ or other territoriall! distinct political authorities on the other hand*

8ederal s!ste#s are there"ore characteri*ed b! a division o" polic! co#petences between the di""erent levels o" govern#ent that co#prise the "ederation, some of which are exercised at central8federal8le!el and others at the sub:central level* )hile no two "ederations will have an identical division o" co#petences between the central and sub-central governments, a feature common to all federations is that the assign#ent o" co#petences will be set out in relevant articles o" a written constitution and may only e chan&ed in accordance with the pro!isions of that constitution*

Comment: So this is a division o" sovereign powers to govern and legislate* Each level o" govern#ent is autono#ous within its de#arcated powers* The constitutional instru#ent could either list the co#petences reserved to national govern#ent or, alternati!ely, list the co#petences "or which the sub: national units are responsi le* In our imaginary country, the competences( $areas of &o!ernment acti!ity' that national &o!ernment could e responsi le for mi&ht include" national defence and security# order control# citi9enship# a common currency# some aspects of en!ironmental protection# responsi ility for the constitutional system*

6evolution" dele&ation central &o!t while retain the so!erei&nty and has the unilateral power to &et ack the power 6can e done y ordinary le&islation7 A further option would e devolution* Like federalism, this allocates power to di""erent levels o" govern#ent ut does so in a constitutionall! di""erent wa!* The Ro!al 7o##ission on the 7onstitution de"ined devolution as +the delegation o" central govern#ent powers with:out the relin/uish#ent o" sovereignt!0 The national govern#ent and parlia#ent retain a unilateral power to trans"er the relevant powers bac+ to the#selves, should this be thought to be necessar! or desirable in the national interest, and to legislate "or polic! areas that have been devolved*

)hereas federalism systems must e ased on a settled constitutional framework, devolution #a! be achieved b! ordinar! legislation made y the national parliament* Exa#ples o" European countries with re&ional &o!ernment ased on de!olution principles include Ital!$ -pain$ and the United %ingdo#*

:ifferent system across the Europe can e inte&rated throu&h ;uman Ri&ht and EU =hether a unitar!$ "ederal or devolved s!ste# is chosen, a further decision to e made is whether our i#aginar! countr! should beco#e part o" the European integration pro3ect* As we ha!e seen in pre!ious chapters, this is ta+ing place in two wa!s* 8ocusing on hu#an rights, the 7ouncil o" Europe and its <udicial or&an the European 7ourt o" 9u#an Rights pro#ote uni"or# respect "or basic "reedo#s and rights across European countries*

The European Union, with 4) #e#ber states, pro!ides an institutional "ra#ewor+ "or #a+ing polic! and law across a wide range o" sub3ects* . /uid pro /uo for the enefits of <oinin& either or oth international or&ani9ations is the acceptance o" constraints on polic! and law: #a+ing b! national and an! sub: national govern#ents

Local council issue >apart "ro# national and subnational? In desi&nin& how, if at all, public power is to be distributed within the countr!, thou&ht should also be given to a tier o" local govern#ent $ elow the national and any su =national tiers'* A ran&e of interconnected /uestions would need to be considered ;ow +local(" nei&h ourhoods or much lar&er units2 ;ow will local &o!ernment e financed8will units ha!e powers to raise ta1ation or will they rely on allocations of funds from national &o!ernment2 Is local &o!ernment &oin& to e an a&ent of national &o!ernment or do we en!isa&e that they will e elected political odies a le to pursue their own policy choices2

& T9E UNITE6 %ING6OM .,,RO.79 U% ne!er e a real unitary state as Scotland and NI retain their le&al system ut there is centrali9ed &o!t y )estminster >arliament The si*e and location o" the i#aginar! countr! is, of course, si#ilar to the United %ingdo#* The possibilit! o" starting with a blan+ sheet does not e1ist* The United %ingdo# is a product o" its historical develop#ent rather than a one=off plannin& e1ercise* Clues to its constitutional e!olution are in the countr!2s na#e" the United %ingdo# o" Great &ritain and Northern Ireland It may e described as a union2 state, as its historical roots are in the 3oining together o" previousl!

separate territories in the ei&hteenth and nineteenth centuries* It has there"ore never been a @unitar!2 state in the sense descri ed here" -cotland ;part o" the union since 'A5A< and Northern Ireland ;since '(44 or ')5'B as we shall see< retained legal s!ste#s and other institutions o" govern#ent that were distinct and separate "ro# those o" England and =ales* Nonetheless, the United %ingdo# was a highl! centrali*ed state8 run b! the U% govern#ent "ro# @=hitehall2 and the U% ,arlia#ent at =est#inster for much of the twentieth century* .t the sa#e ti#e, there re#ained strong cultural di""erences between the parts o" the United %ingdo#

U% #ultilevel governing" Local council, de!ol!ed states, national, EU

4ne of the main tasks of a constitutional system is to pro!ide a framework specifyin& where pu lic power lies, and then ensurin& that this is respected* This chapter e1plores, from the perspecti!e of constitutional law, how the current di!ision has come a out and some of the technicalities as to how the allocation of power is defined* 8or the United %ingdo#$ the practical process o" governing and legislating now ta+es place at "our #ain levels" Local council$ devolved states$ national$ EU

The momentous decision to 3oin the European Econo#ic 7o##unit! $the forerunner of the European Union' in ?@AB added a new tier* )ithin the United %in&dom, centrali9ation was alle!iated in '(() b! the introduction o" regional devolved govern#ent "or three parts o" the countr!" Northern Ireland, Scotland, and )ales* )ith the passin& of the Localis# .ct 45'' and national &o!ernment committed to pro#oting localis#2, a new era seems to e openin& up for local &o!ernment, with &reater powers to act independently of national &o!ernment*

,arlia#entar! supre#ac! = >S make distri ution of powers easily &et done in the a sence of special procedures The U% "ra#ewor+ for distri ution of powers is anythin& ut settled* Indeed, it is no exaggeration to sa! that the allocation o" public power to ta+e executive action and legislate is one o" the #ost contentious aspects o" the U% constitution# because o" this there have been #an! pro"ound changes $and possi ly more on the hori9on'* In the absence o" an! codi"ied constitution with special amendment procedures, politicians have "ound it possible to introduce sweeping changes$ than+s to parlia#entar! supre#ac!

: Exa#ple o" powers o" ,-B <oin ECA, de!olution and localism merely y Act of >arliament 4rthodo1 constitutional thinkin& $the =est#inster #odel' places the national levelC the whole United %ingdo#Cat the centre o" the picture The principle o" parlia#entar! supre#ac! asserts that the U% ,arlia#ent has unli#ited legislative co#petence $it can pass laws on whate!er it wants to' and the U% &o!ernment, accounta le to the U% >arliament, is the directin& force* Certainly, it is possi le to tell the story of the de!elopment of distri ution of power from this standpoint*

In the late '(D5s, the U% govern#ent ;led at the ti#e b! ,ri#e Minister Edward 9eath< decided that it would e in the national interest for the country to beco#e a #e#ber o" the European Econo#ic 7o##unit! $the forerunner of the European Union', and the U% ,arlia#ent in enacting the European 7o##unities .ct '(A4 agreed* In the late '((5s, the U% &o!ernment $led at the time y >rime Cinister Tony Dlair' decided that it would e, in the national interest for there to e decentrali*ation o" executive and legislative power to Northern Ireland$ -cotland and =ales and the U% >arliament a&reed in enacting the Northern Ireland .ct '(()$ -cotland .ct '(()$ and the Govern#ent o" =ales .ct '(() $known collecti!ely as +the de!olution Acts('*

7it!wide govern#ent was reintroduced to London in '((), with the creation o" a directl! elected #a!or and Greater London .sse#bl!* A new era "or local govern#ent began under the Localis# .ct 45'', which promises far &reater freedom of action than e1isted pre!iously*

= E!en de!olution or <oinin& EU did not lose their >S Evidence o" the continued control o" parlia#entar! sovereignt! can e found in the statute ook* Each o" the devolution .cts expressl! preserves parlia#entar! sovereignt!" so s* 4);'< o" the -cotland .ct '(() pro!ides that the Scottish >arliament +may make laws, to e known as Acts of the Scottish >arliament( but s 4);(< states cThis section does not a""ect the power o" the ,arlia#ent o" the United %ingdo# to #a+e laws "or -cotland0

In relation to EU law, the European Union .ct 45'' contained what the govern#ent calls @a declarator! provision2B European Union .ct 45''$ s ')B Status of EU law dependent on continuin& statutory asis o 6irectl! applicable or directl! e""ective EU law $that is, the ri&hts, powers, lia ilities, o li&ations, restrictions, remedies and procedures referred to in section .$?' of the European Communities Act ?@A.' falls to e reco&nised and a!aila le in law in the United %in&dom onl! b! virtue o" that .ct or where it is re/uired to be recognised and available in law b! virtue o" an! other .ct

The Explanator! Notes acco#pan!ing the 45'' .ct, written y &o!ernment lawyers, stated" ?.0* This declarator! provision was included in the .ct in order to address concerns that the doctrine o" parlia#entar! sovereignt! #a! in the "uture be eroded b! decisions o" the courts* Dy pro!idin& in statute that directly e""ective and directl! applicable EU law onl! ta+es e""ect in the U% legal order through the will o" ,arlia#ent and b! virtue o" the European 7o##unities .ct '(A4 or where it is re/uired to be recognised and available in law b! virtue o" an! other .ct$ this will provide clear authorit! which can be relied upon to counter argu#ents that EU law constitutes a new higher autono#ous legal order deri!ed from the EU Treaties or international law and principles which has ecome an inte&ral part of the U%Es le&al system independent of statute*

,ower o" the peopleB consent through re"erendu#s = Se!eral referendums held esides U% >arliament allocate the power An account based onl! on the U% govern#ent and U% ,arlia#ent as controlling strategic decisions a out the allocation of power would, however$ #iss a vital part o" the picture" the views o" the electorate$ expressed in re"erendu#s .l#ost all the re"erendu#s held in the United %in&dom ha!e een about the territorial division o" powers +No2 votes have the capacit! to stop national govern#ent pursuing its ai#s* In '(A), an insu""icient nu#ber o" people voted "or devolution proposals

U% &o!ernment proposals to decentrali9e power to nine re&ions of En&land failed in .00/, when !oters in a referendum in one re&ion decisi!ely re<ected the idea* Cost recently, the European Union .ct 45'' has created legal obligations "or re"erendu#s to ta+e place be"ore the U% govern#ent #a! agree to various changes to the "oundational treaties o" the European Union* In Fune .0?., >rime Cinister :a!id Cameron said he would consider a referendum on the United %in&doms relationship with the European Union when the time was ri&ht* There is road a&reement of the principle that the Scottish people, ha!in& elected in a pro=independence &o!ernment in .00A, should ha!e the opportunity to !ote on a referendum a out Scotland(s constitutional future within or separate from the United %in&dom*

= >arado1 !iew= present of >S ut referendum seemed play a !ital role Some commentators su&&est that the consistent use of referendums in relation to /uestions about distribution o" powers re/uires new thin+ing about orthodox ideas about parlia#entar! supre#ac! Ti#noth! 9 Eones $.0?.' BB Statute Law Re!iew ?,B $footnotes omitted' 3rom the !iewpoint of the )estminster >arliament, nothin& in the .00- 6Go!ernment of )ales7 Act affects the continuin& so!erei&nty of that ody* All the le&islati!e powers con,ferred on the National Assem ly depend upon the Act for their le&al effect* They deri!e from the will of >arliament e1pressed in the Act* Thus, the .00- Act pro!ides that the le&islati!e competence of the National Assem ly Edoes not affect the power of the >arliament of the United %in&dom to make laws for )alesE* The National Assem ly is a de!ol!ed le&islature with limited powers* It may le&islate only to the

e1tent that it has een &i!en power y )estminster to do so under the .00- Act $or any future le&islation'* 3rom its own perspec,ti!e, of course, there is no restriction upon the )estminster >arliament amendin& or e!en repealin& the .00- Act" it would not e ound y the Act of its predecessors and could, in theory, withdraw any or all the National Assem lyEs de!ol!ed powers* $And of course de!olu,tion was suspended in Northern Ireland for some years followin& a reakdown in the peace process, until ein& restored in .00A*' ;owe!er, what is le&ally possi le may not e constitu,tionally or practically achie!a le* And if >arliament did le&islate for )ales in a de!ol!ed area, such as health or education, the le&itimacy of its doin& so would e 5uestioned* The paradox, howe!er, is that the traditional approach re"lected in the 455D .ct is under=mined y the .ct0s own reliance upon the constitutional re"erendu# to secure the endorse#ent o" the =elsh electorate* The use o" the re"erendu# e#phasi*es the sovereignt! o"

the people in deter#ining the legislative powers of the National Assem ly* In fact, there have been three such re"erendu#s in =ales* The first, in '(A(, sou&ht appro!al for the scheme of de!olution contained in the )ales Act ?@AH* It was re3ected overwhel#ingl! Latterly, the Govern#ent o" =ales .ct '(() followed the referendum of Septem er ?@@A, where there was narrow appro!al of the idea to esta lish a National Assem ly* And in March 45'', there was overwhel#ing approval o" a #ove to 0"ull0 legislative devolution, under >art / of the Go!ernment of )ales Act .00-*

= :ecentrali9ation is worldwide phenomena in order to &et enefits and trends in U% are part of &eneral chan&e 6may e this is not so called a&ainst the >S7 In the followin& e1tract, Mar+s and 9ooghe show that decentrali*ation and internationali*ation o" governance are a worldwide pheno#enon The trends seen in the United %ingdo# are there"ore part o" a general change in the wa! in which people are governed

Gar! Mar+s and Liesbet 9oogheB Centrali9ed authority has &i!en way to new forms of &o!ernin&* 3ormal authority has een dispersed from central states oth up to supranational institutions and down to re&ional and local &o!ernments* A recent sur!ey finds that sixt!: three o" sevent!:"ive developing countries have undergone so#e decentrali*ation o" authorit! > N?o EU countr! has beco#e #ore centrali*ed since '()5, while half ha!e decentrali9ed authority to a re&ional tier of =&o!ernment* The '()5s and '((5s have also seen the creation o" a large nu#ber o" transnational regi#es$ so#e o" which exercise real supranational authorit! .t the sa#e ti#e$ publicFprivate networ+s o" diverse +inds have #ultiplied "ro# the local to the international level

The diffusion of authority in new political forms has led to a profusion of new terms" multile!el &o!ernance, multi=tiered &o!ernance, polycentric &o!ernance, multi=perspecti!al &o!ernance, functional, o!erlappin&, competin& <urisdictions $34CF', fra&me&ration $or spheres of authority', and consortio and condominio, to name ut a few* The e!olution of similar ideas in different fields can e e1plained partly as diffusion from two literatures8 federalism and pu lic policy* Dut we suspect that this conceptual in!ention has independent sources* In this chapter, we do not summari9e the particularities of the concepts that ha!e een put forward, nor do we do <ustice to the intellectual history of the field* Instead we mine the rele!ant litera,tures for some conceptual enchmarks in order to facilitate empirical analysis* These literatures a&ree that the dispersion o" governance across #ultiple 3urisdictions is oth #ore e""icient than, and normati!ely superior to, central state #onopol!

They claim that &o!ernance must operate at multiple scales in order to capture !ariations in the territorial reach of policy e1ternalities* Decause e1ternalities arisin& from the provision o" public goods !ary immensely8"ro# planet:wide in the case o" global war#ing to local in the case o" #ost cit! servicesCso should the scale o" governance* To internali*e externalities, &o!ernance must e multi=le!el* This is the core ar&ument for multi=le!el &o!ernance, ut there are several other perceived bene"its 3or e1ample, #ore decentrali*ed 3urisdictions can etter re"lect heterogeneit! o" pre"erences a#ong citi*ens Cultiple <urisdictions can facilitate credi le policy commitments* Cultiple <urisdictions allow for <urisdictional competition* And they facilitate inno!ation and e1perimentation*

;owe!er, eyond the presumption that &o!ernance has ecome $and should e' multi= <urisdictional, there is no a&reement a out how multi= le!el &o!ernance should e or&ani9ed* 6***? 64ne !ision7 concei!es of dispersion of authority to <urisdictions at a limited num er of le!,els* These <urisdictions8international, national, re&ional, meso, local8are &eneral= purpose* That is to say, they undle to&ether multiple functions, includin& a ran&e of policy responsi ili,ties, and in many instances, a court system and representati!e institutions* The mem ership oundaries of such <urisdictions do not intersect* This is the case for <urisdictions at any one le!el, and it is the case for <urisdictions across le!els* In this form of &o!ernance, e!ery citi,9en is located in a Russian :oll set of nested <urisdictions, where there is one and only one rele!ant <urisdiction at any particular territorial scale* Territorial <urisdictions are intended to e, and usually are, sta le for se!eral decades or more, thou&h the allocation of policy com,petencies across le!els is fle1i le*

Ihe remainder of this chapter is or&ani9ed around three le!els of &o!ernin&8national $part .', re&ional $part B', and local $part /'* The focus is therefore on multile!el &o!ernin& within the United %in&dom* The European Union is dealt with separately in Chapter H $e1ecuti!e power' and Chapter ?. $treaties and le&islati!e processes'* >art IJ Introduction considers the distinct 5uestion of the United %in&dom(s separate le&al <urisdictions, the ori&ins of which pre=date de!olution y centuries*


Created as sin&le realm and Some issue treated e the same entity as present of sin&le court and <udicial system 6only different lan&ua&e7 but as constitutional different in other issue En&land $a sin&le territorial entity y @.Aad' and =ales $a principality' were created into a single real# in law b! the Laws in =ales .cts ?KBK=/.* 8or so#e purposes, En&land and )ales are treated as a single entit!* There is a single court and 3udicial s!ste# co!erin& oth of these parts of the United %in&dom8although e!en here there is some differentiation, because there are statutor! rights about the use o" the =elsh language in court

proceedings that appl! onl! to proceedings in =ales 8or other purposes, England and =ales are constitutionall! distinct* Since ?@@H, there has been a directl! elected National .sse#bl! "or =ales, with law= makin& and e1ecuti!e powers in relation to )ales only*

En&land defined y Act and the area +England2 has a prosaic statutory definition as an aggregate o" the units o" local govern#ent de"ined b! the Local Govern#ent .ct '(A4* The extent o" the @English2 territorial sea is nor#all! assu#ed to be that part o" the territorial sea that has not been assigned to another part o" the United %ingdo#*

Area of )ales )ales is similarly defined in terms of +the co#bined area o" the counties which were created b! section 45 o" the Local Govern#ent Act ?@A., as ori&inally enacted, ut sub3ect to an! alteration #ade under s AH o" that .ct $conse5uential alteration of oundary followin& alteration of watercourse'E* )ales +includes the sea ad<acent to )ales out as far as the seaward oundary of the territorial sea* 8or the purposes o" devolution, there is also the concept o" @an English border area2$ which is a part o" England ad3oining =ales @but not the whole o" England0



3ormation y <oin of Scotland which use same fla&, coin, uniform ta1ation and common market A "or#al political union between two independent nationsC England and =ales, and -cotland which had een ruled y the sa#e #onarchs since 'D5H8was "orged b! the Treat! o" Union and the .cts o" Union 'A5D:5A passed b! the -cottish and English ,arlia#ents, which created a ,arlia#ent o" Great &ritain, the 7rown o" Great &ritain, and thus a govern#ent o" Great &ritain* The union produced a new "lag$ co##on coinage$ uni"or# taxation$ and a co##on #ar+et*

Althou&h treaty or Act ?A0A may claim the Act ?A0? is hi&her law, ut the e!idence pro!e that ?A0A Act has een amended notwithstandin& that preser!ed +in all perpetuity( 6istinctive -cottish institutions were intended to be preservedC so#e @in all perpetuit!2 , according to the Treat! o" Union Cincluding the ,resb!terian 7hurch$ educational institutions$ and the s!ste# o" local govern#ent The new ,arlia#ent o" Great &ritain2s power to legislate "or -cotland was li#ited in that no alteration can be #ade in laws @which concern private right, except "or the evident utilit! o" the sub3ects within -cotland0* The Treat! also protected the 3urisdiction o" the 9igh 7ourt o" Eusticiar! $so e1plainin& why in modern times, the U% -upre#e 7ourt has no 3urisdiction over cri#inal appeals from Scotland'*

8or so#e -cottish scholars$ co##entators >Mac 7or#ic+?, lawyers, and politicians8even 3udgesCthe Treat! and .ct o" Union$ along with the 7lai# o" Right .ct 'D)('5 $an Act of the Scottish >arliament prior to the union', are to e re&arded as "oundational to the &ritish constitution* .rt ' o" 'A5A .ct stated that" +That the two %in&doms of En&land and Scotland shall upon the 3irst day of Cay which shall e in the year 4ne thousand se!en hundred and se!en and "or ever a"ter be united into one %in&dom y the name of Great Dritain( The di""erent and do#inant view, from a lar&ely En&lish perspecti!e and e#bodied #ost strenuousl! in the wor+ o" . V 6ice!, is the principle o" parlia#entar! supre#ac!, which #eans that the U% ,arlia#ent cannot be constrained b! an! such supposed @superior law2

;e 5uipped that @neither the .ct o" Union with -cotland nor the 6entists .ct ')A)$ has #ore clai# than the other to be considered a supre#e law2 $p* ?/K'* 9e sought to de#onstrate his point e#piricall! y listing the occasions on which the 'A5A .ct had been a#ended, notwithstanding its assertion that it was legislating in perpetuit!* Act of Union with Scotland ?A0A?B $e1tracts' ARTICLE I The %in&doms United# Ensi&ns Armorial That the two %in&doms of En&land and Scotland shall upon the 3irst day of Cay which shall e in the year 4ne thousand se!en hundred and se!en and for e!er after e united into one %in&dom y the name of Great Dritain And that the Ensi&ns Armorial of the said United %in&dom e such as ;er Ca<esty shall appoint and the Crosses of St* Geor&e andsSt* Andrew e con<oyned in such manner as ;er Ca<esty shall think fit and used in all

3la&s Danners Standards and Ensi&ns oth at Sea and Land* ARTICLE II Succession to the Conarchy That the Succession to the Conarchy of the United %in&dom of Great Dritain and of the :ominions thereto elon&in& after ;er most Sacred Ca<esty and in default of Issue of ;er Ca<esty e remain and continue to the most E1cellent >rincess Sophia Electoress and :uchess :owa&er of ;ano!er and the ;eirs of her ody ein& >rotestants upon whom the Crown of En&land is settled y an Act of >arliament made in En&land in the Twelfth year of the rei&n of ;is late Ca<esty %in& )illiam the Third intituled an Act for the further Limitation of the Crown and etter securin& the ri&hts and Li erites of the Su <ect And that all >apists and persons marryin& >apists shall e e1cluded from and for e!er incapa le to inherit pos,sess or en<oy the Imperial Crown of Great Dritain and the :ominions thereunto elon&in& or any part thereof and in e!ery such Case the Crown and Go!ernment shall from time to time descend to and e en<oyed y such person ein& a >rotestant as should ha!e inherited and en<oyed the same in case such >apist or person marryin& a >apist

was naturally dead accordin& to the >ro!ision for the descent of the Crown of En&land made y another Act of ?0 A +deeply sectarian document(" see A* 4(Neill, +Constitutional reform and the U% Supreme Court" A !iew from Scotland( 6.00/7 FR .?-,..@=B0* ?? 3or discussion, see N* CacCormick, +The En&lish constitution, the Dritish State, and the Scottish anomaly( $?@@@' ?0? >roceedin&s of the Dritish Academy .H@* ?. A*J* :icey, Introduction to the Study of the Law of the Constitution $?HHK# ?0th edn ?@K@, London" Cacmillan L Co'* ;e 5uipped thatcneither the Act of Union with Scotland nor the :entists Act ?HAH, has more claim than the other to e considered a supreme law( $p* ?/K'* ;e sou&ht to demonstrate his point empirically y listin& the occasions on which the ?A0A Act had een amended, notwithstandin& its assertion that it was le&islatin& in perpetuity* The Scotland Act ?@@H, s*BA, e1pressly pro!ides thatcThe Union with Scotland Act ?A0- and the Union with En&land Act ?A0A ha!e effect su <ect to this ActM*

?B Taken from the U% Statute Law :ata ase* >arliament in En&land in the first year of the rei&n of Their late Ca<esties %in& )illiam and Nueen Cary intituled an Act declarin& the Ri&hts and Li erites of the Su <ect and settlin& the Succession of the Crown* ARTICLE SIS >arliament That the United %in&dom of Great Dritain e represented y one and the same >arliament to e stiled The >arliament of Great Dritain* ARTICLE ???O Trade and Na!i&ation and other Ri&hts, That all the Su <ects of the United %in&dom of Great Dritain shall from and after the Union ha!e full freedom and Intercourse of Trade and Na!i&ation to and from any port or place within the said United %in&dom and the :ominions and >lantations thereunto elon&in& And that there e a Communication of all other Ri&hts >ri!ile&es and Ad!anta&es which do or may elon& to the Su <ects of either %in&dom e1cept where it is otherwise e1pressly a&reed in these Articles* ARTICLE P? Re&ulations of Trade, :uties, Lc*

That all parts of the United %in&dom for e!er from and after the Union shall ha!e the same Allowances Encoura&ements and :raw acks and e under the same prohi itions restric,tions and re&ulations of Trade and lia le to the same Customs and :uties on Import and E1port And that the Allowances Encoura&ements and :raw acks prohi itions restrictions and re&ulations of Trade and the Customs and :uties on Import and E1port settled in En&land when the Union commences shall from and after the Union take place throu&hout the whole United %in&dom* 6***7 ARTICLE III Court of Session* )riters to the Si&net admitted Lords of Session* Court of Fusticiary* 4ther Courts* Causes in Scotland not co&ni9a le in Courts in )estminster ;all* That the Court of Session or Colled&e of Fustice do after the Union and notwithstandin& thereof remain in all time comin& within Scotland as it is now constituted y the Laws of that %in&dom and with the same authority and pri!ile&es as efore the Union Su <ect ne!,ertheless to such re&ulations for the etter Administration of Fustice as shall e made y the >arliament of Great Dritain and that hereafter none shall

e named y ;er Ca<esty or ;er Royal Successors to e ordinary Lords of Session ut such who ha!e ser!ed in the Colled&e of Fustice as Ad!ocates or >rincipal Clerks of Session for the Space of 3i!e years or as )riters to the Si&net for the Space of ten years with this pro!ision that no )riter to the Si&net e capa le to e admitted a Lord of the Session unless he under&o a pri!ate and pu lick Tryal on the Ci!il Law efore the 3aculty of Ad!ocates and e found y them 5ualified for the said 4ffice two years efore he e named to e a Lord of the Session yet so as the Nualifications made or to e made for capacitatin& persons to e named ordinary Lords of Session may e altered y the >arliament of Great Dritain And that the Court of Fusticiary do also after the Union and notwithstandin& thereof remain in all time comin& within Scotland as it is now constituted y the Laws of that %in&dom and with the same authority and pri!i,le&es as efore the Union Su <ect ne!ertheless to such re&ulations as shall e made y the >arliament of Great Dritain and without pre<udice of other ri&hts of Fusticiary 6***7 And that the hereta le ri&hts of Admiralty and Jice Admiralties in Scotland e reser!ed to the

respecti!e proprietors as ri&hts of property Su <ect ne!ertheless as to the manner of e1er,cisin& such hereta le ri&hts to such re&ulations and alterations as shall e thou&ht proper to e made y the >arliament of Great Dritain And that all other Courts now in ein& within the %in&dom of Scotland do remain ut Su <ect to alterations y the >arliament of Great Dritain And that all inferior Courts within the said limits do remain Su ordinate as they are now to the supreme Courts of Fustice within the same in all time comin& And that no Causes in Scotland e co&nosci le y the Courts of Chancery NueenEs Dench Common >leas or any other Court in )estminster ;all and that the said Courts or any other of the like nature after the Union shall ha!e no >ower to co&nosce re!iew or alter the Acts or Sentences of the Fudicatures within Scotland or stop the E1ecution of the same 6*,* 7

In the ne1t e1tract, :r Eli9a eth )icks considers the constitutional status of the Treaty and Acts of Union* Eli9a eth )icks" QConstituentMM and QconstitutionalQ8 is there a difference2 The Acts and Articles of Union are clearly constituent documents* 6*** 7 they ha!e an impor,tant role to play in constitutin&, or creatin&, a new state* They are also constituent in the sense of constitutin& a new le&al order for that new state* This new le&al order includes at its ape1 a new >arliament8the supreme law=makin& ody within the new state* The conse,5uences of the creation of a new >arliament is pro a ly the issue which has pro!oked most de ate in respect of the Acts of Union 6*** 7 ;owe!er, the si&nificance of the creation of a new >arliament should not e permitted to o scure the much &reater si&nificance of the creation of an entirely new le&al order* Allott has written that a constitution Qdescri es the way in which the political power of the society is concentrated and places the source of that concentration somewhere

other than in the mere fact of powerQ* The idea ehind this statement is that the power of &o!ernment deri!es not from the use of force ut from the stateEs constitution* There is a le&itimacy of &o!ernment which would otherwise e lackin& if political power were sei9ed unilaterally, and may also e lackin& in the future if the constitutional &o!ernment were ille&ally o!erthrown* A constitution therefore not only constitutes a new le&al order $althou&h it will y definition do this', ut it also le&itimises that order and the rules accordin& to which it operates* CacCormick asked the 5uestion" QIf a State has at some time een set up, EconstitutedE y some deli erate act or acts, can these constituent acts e other than constitutions2Q The answer is, undou tedly, yes* In part this is due to the le&itimisin& role of a constitution descri ed a o!e, ut there is also a further distinction* A constituent document constitutes somethin&* It esta lishes a state andRor a le&al order* As such it is a sin&ular act* A Qconstitu,tionQ, howe!er, must ha!e continuin& si&nificance* It will include elements of a constituent nature, and these elements will e tracea le ack to a sin&ular moment in time, ut their

incorporation into a constitution ena les contemporary li&ht to e cast upon them* A con,stitution reflects the present reality of a state and le&al order which were constituted in the past* A constitution &oes eyond constitutin& a le&al order and also determines how that le&al order will function today, tomorrow and into the future* It does this y indin& the or&ans of &o!ernment* The Acts of Union are constituent* An entirely separate 5uestion is whether they amount to a QconstitutionQ*

Althou&h the word may indicate hi&her law ut the word is usually ein& used in that century Eli*abeth =ic+sB The Acts of Union as hi&her law There see#s little doubt that the Union legislation was intended b! its dra"ters to be a higher law, binding upon the legislature which it created* This is indicated b! the language used* The union between England and -cotland$ "or exa#ple$ was expressed to be 0"or ever a"ter0 ;owe!er, such language was not unusual in the seventeenth and eighteenth centuries and, althou&h the Scottish Union le&islation has een descri ed as Qnot so o !iously in tattersQ as the Irish Union le&islation, there ha!e een reaches

of pro!isions which were intended in ?A0A to remain in force for e!er*

)hether the pro!isions were reach open to ar&uments ut o !iously pro!isions were reached Eli*abeth =ic+sB There is much disa&reement o!er the e1tent of the reaches* Munro clai#s Ial#ost all o" the articles and sections o" the legislation have been repealed in whole or in partQ and b! contrast Citchell ar&ues that it is Idoubt"ul i" there has as !et been an! breachI The truth, as usual, probabl! lies so#ewhere between the two extre#es

Dreach ut continue indin& constitution as limit the le&islature to a olish the appellate <urisdiction of ;4L ?@A. howe!er le&islatures at that time are not concerned a out the Act ut the people Eli*abeth =ic+sB -o#e co##entators who accept that provisions o" the Union have been breached continue to clai# that it re#ains a binding IconstitutionI Two ar&uments are used to support this inconsistenc! and both are unconvincing* 3irstly, it has een ar&ued that there is evidence in legislative practice that the Union i#poses li#its on the legislature The QevidenceI usuall! /uoted is the abandon#ent o" proposals to abolish the appellate 3urisdiction o" the 9ouse o" Lords and ,riv! 7ouncil in ')A4

&ut Lord 7hancellor -elborne when withdrawin& the proposals due to Qconstitutional o <ectionsQ, e#phasised the dangers in trans"erring -cots appeals to a new court Iwithout "irst ascertaining that such a trans"er would be approved b! the people o" -cotlandI This suggests that ,arlia#ent was in"luenced #ore b! public opinion than b! the provisions in the .cts o" Union

The !iew of +consent b! people did not considered as breach2 did not ha!e le&al asis as international law cannot enforce it since the entity of . party to treaty did not e1ist anymore Eli*abeth =ic+sB The issue of consent in a wider conte1t is the second ar&ument used to support the inconsistent !iew outlined a o!e* 3or une1plained reasons a breach o" a Union provision which has the consent o" the -cottish people is generall! regarded b! co##entators as not being a genuine IbreachI Citchell, Smith and Upton all refer in passin& to the distin&uishin& factor of Scottish consent without e1pandin& on why this should e rele!ant in a le&al, as opposed to a political, sense*

The onl! circu#stances under which consent to a breach would have legal relevance would be with regard to a treat! under international law* . #aterial breach b! one part! to a ilateral treaty ena les the other party to ter#inate or suspend the treat! 7onsent to the breach will there"ore enable the treat! to re#ain in "orce Dut this rule o" international law cannot be applied to the Treat! o" Union because neither part! to the Treat! re#ains in existence* The issue o" consent there"ore see#s to be #erel! an atte#pt to bolster an argu#ent which has no legal basis*

Consent is irrele!ant if only secured y con!ention since the status is no different with the other Act Eli*abeth =ic+sB Upton even clai#s that a Iparlia#entar! conventionI re/uires Qthat alterations of the "unda#ental ter#s expressed in England0s "avour #ust be allowed i" "avoured b! England$ and si#ilarl! "or -cotlandI This view cannot be correct I" the Union legislation is no #ore binding on ,arlia#ent than an! other statute, consent is irrelevant e1cept to the e1tent that >arliament will always ha!e re&ard to pu lic opinion*

3undamental law is worth less if claimed that as lon& as &ain support from people Eli*abeth =ic+sB I"$ however$ as Upton$ Mitchell and -#ith the#selves believe, the Union le&islation is a QconstitutionQ, their ar&ument a#ounts to sa!ing that a "unda#ental law #a! be breached i" the public support such a reach* This is a dangerous proposition which would render a "unda#ental law worthless

It is unrealistic if re&ard it is part of constitution as it is not entirely ind of >arliament today ut some pro!isions does To conclude on the 5uestion of whether the Acts of Union may e regarded as a IconstitutionI$ it must e stated that it would not be realistic to regard the# as such* It is clear that not all o" the Union provisions have the status o" higher law* :espite their constituent role, the .cts o" Union are not in their entiret! binding on ,arlia#ent toda!, not least ecause the U*%* Constitution has een su <ect to many chan&es since ?A0A*

This does not #ean, howe!er, that the .cts o" Union are o" no constitutional signi"icance toda! 7ertain provisions$ such as the existence o" a 3oint ,arlia#ent and the protection o" the -cottish legal s!ste#$ continue to bind the organs o" govern#ent* The! do so$ however$ as a result o" their inclusion in a co#plex$ diverse and adaptable #odern 7onstitution o" the United %ingdo#


)ith Northern Ireland form the U% unless under ?@@H Act, ma<ority in NI a&reed ceased ecome part of U% In ?H0?, there was a "or#al political union o" Great &ritain and Ireland $which had een under the rule of En&lish, and later Dritish, monarchs since ??KK'* The new state was na#ed the @United %ingdo# o" Great &ritain and Ireland2* :urin& later decades of the nineteenth century and early years of the twentieth century, there were increasin&ly stron& demands for chome ruleK for Ireland* Se!eral attempts to create autonomous &o!ernment, under the U% Crown, for the whole of Ireland failed* In the last of these attempts, the Go!ernment of Ireland Act ?@.0 di!ided the island of Ireland into Southern Ireland and Northern Ireland* 3urther ne&otiations led to the An&lo=Irish Treaty of ?@.?, creatin& the Irish 3ree State as a :ominion within the Dritish Empire

and Northern Ireland $consistin& of si1 counties'* In ?@.., after ci!il war, the Irish 3ree State constituted itself an independent state, separate from the United %in&dom* Until an amendment in ?@@@, the Constitution oflreland claimed the whole of the island oflreland $thus includin& Northern Ireland' to e part of its national territory* This history is reflected in the first section of the Northern Ireland Act ?@@H*

Northern Ireland .ct '(() ?' Status of Northern Ireland It is here y declared that Northern Ireland in its entiret! re#ains part o" the United %ingdo# and shall not cease to be so without the consent o" a #a3orit! of the people o" Northern Ireland !otin& in a poll held for the purposes of this section in accordance with Schedule ?* Dut if the wish e1pressed y a ma<ority in such a poll is that Northern Ireland should cease to e part of the United %in&dom and form part of a united Ireland, the Secretary of State shall lay efore >arliament such proposals to &i!e effect to that wish as may e a&reed etween ;er Ca<estyEs Go!ernment in the United %in&dom and the Go!ernment of Ireland*

6Uncertain U% area7 6ispute o" -cotland beco#e independence= legality of referendum and question for referendum The United %in&dom has e1isted with its current oundaries for fewer than a hundred years* Its future as a nation state is uncertain* The devolved -cottish Govern#ent created in '((( $as we shall see' has since the 455A elections been "or#ed b! #e#bers o" the -cottish National ,art! The -N, is co##itted to -cotland beco#ing an independent state, separate "ro# the United %ingdo#* The -N, govern#ent proposed holding a re"erendu# on the constitutional "uture o" -cotland in 45'J*

The Conser!ati!e=Li eral :emocrat coalition national &o!ernment formed after the Cay .0?? &eneral election is unionist in its outlook8 as is the official opposition in the U% >arliament, the La our >arty* 4ne of the "irst disputes is whether the -cottish Govern#ent has the necessar! legal power to organi*e a re"erendu# under the powers de!ol!ed to it b! the -cotland .ct '(()* -chedule K reserves to the United %ingdo# the power to legislate on @the Union o" the %ingdo#s o" -cotland and England2* The U% govern#ent argued that this prohibits the -cottish ,arlia#ent "ro# passing legislation "or a re"erendu# on independence*

One counter:argu#ent is that legislation enabling an advisor! re"erendu# "alls outside the scope o" this restriction ecause a non: binding re"erendu# would not in and o" itsel" a""ect the legal status o" the union .nother dispute is o!er the wording o" the re"erendu# The -cottish Govern#ent has indicated that it would like a re"erendu# o""ering three choicesB independence# +de!o ma1( or +de!olution plus( $more de!ol!ed powers'# and the status 5uo* The U% Govern#ent wants there to be a single /uestion

GOVERNING REGION.LLG 3or most of the twentieth century, Great Dritain $En&land, )ales, and Scotland' formed a centrali9ed political unit, with policymakin& and law=makin& ein& led y the U% &o!= ernment and the U% >arliament* There was de!ol!ed &o!ernment in Northern Ireland from ?@.., ut this was rou&ht to an end y the U% &o!ernment in ?@A. amid mount,in& ci!il unrest and paramilitary !iolence* The ei&hteen years of Conser!ati!e U% &o!ern,ment $?@A@=@A' is often characteri9ed as a time of a hi&h de&ree of political centrali9ation* Conser!ati!e policy was opposed to the de!olution of e1ecuti!e and le&islati!e powers to elected odies in )ales and Scotland*?K

. 6EVOLUTIONB . ,RO7E-NOT .N EVENT :e!olution was on the political a&enda for most of the twentieth century in the United %in&dom*

The "ailure o" Northern Irish devolution '(44:A4 : :e!olution failed due to internal ci!il conflict= :irect rule applied y )estminster until ?@@H &etween '(44 and '(A4, devolved govern#ent operated in Northern Ireland under the Govern#ent o" lreland .ct '(44* There was a Northern Ireland >arliament, a >rime Cinister, and a Northern Ireland &o!ernment $formally, the +E1ecuti!e Committee of the >ri!y Council of Northern Ireland(' The U% govern#ent suspended this s!ste# o" govern#ent in '(A4 and the institutions were "or#all! abolished b! the Northern Ireland 7onstitution .ct '(AH* 3rom '(A4 to '(()$ +direct rule2 was in place

The Northern Ireland 4ffice $a U% &o!ernment department' and the Secretary of State for Northern Ireland $a minister in the U% &o!ernment' were responsi le for e1ecuti!e action in the pro!ince# the U% ,arlia#ent #ade laws "or Northern Ireland The "ailure o" devolved govern#ent was due to #ounting para#ilitar! violence between the #inorit! nationalist co##unities $which favoured reunification with the Repu lic of Ireland' and the #a3orit! unionist co##unities ;who wished to see Northern Ireland continue as part of the United Kingdom'* There was wide:spread s!ste#atic discri#ination against nationalists*

The re3ection o" =elsh and -cottish devolution '(A) : 3ailed= people not ready for it yet ?@AH e!en the Act had passed An attempt to put in place devolved govern#ents in -cotland and =ales was #ade in '(A) The Labour govern#ent$ led b! ,ri#e Minister Ea#es 7allaghan$ pushed the -cotland .ct '(A) and the =ales .ct '(A) throu&h the U% >arliament* Although there as no constitutional requirement for them do so, it was recogni*ed that such a signi"icant change should ta+e place onl! with the consent o" the people in those parts of the United %in&dom* &oth .cts there"ore stated that re"erendu#s should be held# moreo!er, they stipulated that at least J5 per cent o" the registered electorate had to approve*

In -cotland, K?*- per cent of those who !oted supported de!olution, ut these ?*. million yes( !otes represented onl! H4 ( per cent o" the electorate In =ales, a large #a3orit! voted no2 in answer to the 5uestion" +:o you want the pro!isions of the )ales Act ?@AH to e put into effect2( &oth .cts were repealed and no "urther steps towards devolution were contemplated y the Conser!ati!e &o!ernment in office for the ne1t ei&hteen years*

The '((A proposals = Act passed and people accept it= show that these e!ents is a process ut not an e!ent 6evolution returned to the political agenda at the '((A general election$ which Labour won* La our >arty General Election Canifesto, New La our Decause Dritain :eser!es defter $?@@A' :e!olution" Stren&thenin& the Union The United %in&dom is a partnership enriched y distinct national identities and traditions* Scotland has its own systems of education, law and local &o!ernment* )ales has its lan,&ua&e and cultural traditions* )e will meet the demand for decentrali9ation of power to Scotland and )ales, once esta lished in referendums* Su sidiarity is as sound a principle in Dritain as it is in Europe* 4ur proposal is for de!olu,tion not federation* A so!erei&n )estminster >arliament will de!ol!e power to Scotland and )ales* The Union will e

stren&thened and the threat of separatism remo!ed* As soon as possi le after the election, we will enact le&islation to allow the people of Scotland and )ales to !ote in separate referendums on our proposals, which will e set out in white papers* These referendums will take place not later than the autumn of ?@@A* A simple ma<ority of those !otin& in each referendum will e the ma<ority re5uired* >opular endorsement will stren&then the le&itimacy of our proposals and speed their passa&e throu&h >arliament* 3or Scotland we propose the creation of a parliament with law=makin& powers, firmly ased on the a&reement reached in the Scottish Constitutional Con!ention,O?-7 includin& defined ?- The Scottish Constitutional Con!ention was an unofficial ody that carried out work to prepare for de!olution durin& the ?@@0s* and limited financial powers to !ary re!enue and elected y an additional mem er system* In the Scottish referendum we will seek separate endorsement of the proposal to create a parliament, and

of the proposal to &i!e it defined and limited financial powers to !ary re!enue* The Scottish parliament will e1tend democratic control o!er the responsi ilities currently e1er,cised administrati!ely y the Scottish 4ffice* The responsi ilities of the U% >arliament will remain unchan&ed o!er U% policy, for e1ample economic, defence and forei&n policy* The )elsh assem ly will pro!ide democratic control of the e1istin& )elsh 4ffice func,tions* It will ha!e secondary le&islati!e powers and will e specifically empowered to reform and democratise the 5uan&o state* It will e elected y an additional mem er system* 3ollowin& ma<orities in the referendums, we will introduce in thefirstyear of the >arliament le&islation on the su stanti!e de!olution proposals outlined in our white papers*

)ithin months of the La our &o!ernment takin& office in ?@@A, =hite ,apers setting out the govern#ent plans "or devolution in -cotland and =ales were pu lished and referendums held8this time efore Dills settin& out the details of de!olution were introduced to the U% >arliament8and "ollowing !es2 votes in both =ales $K0*B per cent indicatin& ? a&ree that there should e a )elsh Assem ly(' and -cotland $A/*B per cent indicatin& T a&ree that there should e a Scottish >arliament( and -B*K per cent indicatin& CI a&ree that a Scottish >arliament should ha!e ta1=!aryin& powers('* 8aced with the political realit! o" popular support "or devolution, the 7onservatives accepted the principle o" decentrali*ation The! initiall! re3ected Elections "or the -cottish ,arlia#ent and the National .sse#bl! "or =ales were held in Ma! '(((, and devolved powers were trans"erred shortl! a"terwards*

The phrase @devolution is a process, not an event2 is o"ten /uoted, ecause it re"lects the realit! that the '(() devolution .cts were not a once : and:"or: all: ti#e settle#ent, ut rather the "irst stage o" a developing set o" arrange#ents

The devolution process "or Northern Ireland : Suspend until .00A due to corporation issue tw the parties and further de!ol!ed power in .0?0 The protracted peace process in Northern Ireland was slowl! leading to all:part! agree#ent durin& ?@@H* The &el"ast ;or @Good 8rida!2< .gree#ent was signed in .pril '((), and received #a3orit! support in re"erendu#s held in Ireland and Northern Ireland A central strand in the ne&otiations was a plan for de!ol!ed &o!ernment* Elections for the Northern Ireland Assem ly were held in ?@@H, .00B, and .00A* 6evolution has been suspended periodicall!$ as parties in the .sse#bl! were unable to cooperate

6evolved govern#ent was restored a"ter the 455A elections* . "urther #ilestone in the devolution process was achieved with the trans"er o" police and 3udicial powers in 45'5

The devolution process "or =ales : Cross party dissatisfy the un= separate e1ecuti!e and le&islati!e, new Act repeal the old Act )ithin months of de!olution in )ales startin&, there was cross:part! dissatis"action with one central feature of the &o!ernin& arran&ements set out in the Govern#ent o" =ales .ct '(()8 namely, that the National Assem ly was a corporate ody without a "or#al separation between its legislative and scrutin! activities, on the one hand, and executive "unctions$ on the other* In other words, there was no @govern#ent2 separate "ro# the .sse#bl! as a whole* In .00., the 8irst Minister ;as the 8irst -ecretar! was b! then st!led< set up a ten: person 7o##ission on the >owers and Electoral Arran&ements of the Assem ly to look into this and other aspects of the operation of de!olution*

The Commission reported in .00/ concludin&" +)e do not think the status 5uo is a sustaina le asis for future de!elopmentE The U% &o!ernment accepted some, ut re<ected others, of the Commissions proposals* The Govern#ent o" =ales .ct 455D replaced the '(() .ct

The devolution process "or -cotland = Success in de!olution in Scotland due to althou&h U% parliament has the power to le&islate ut y con!ention they would not do so In .00H, the U% govern#ent ;not the -cottish govern#ent< set up a co##ission chaired y= -ir %enneth 7ai#an $a medic and uni!ersity leader' to review the experience o" devolution It concluded that devolution in -cotland had been @a real success2 Commission on Scottish :e!olution, Ser!in& Scotland Detter" Scotland and the United %in&dom in the .?st Century $.00@' :ewolistSon inside a political Union ?K* In thinkin& a out how de!olution should de!elop further, we ha!e looked !ery carefully at how it fits into the wider Union that is the United %in&dom* This is first of all a political Union, with a >arliament at )estminster where e!ery part of the country is represented* Some thin&s

like defence and forei&n relations can only e dealt with there if we are to ha!e a Union at all* There should e no chan&e in those* Dut we ha!e considered what impact they ha!e on matters that are now 5uite properly dealt with y the Scottish >arliament* 3or instance, work,in& with the other mem ers of the European Union critically affects a&riculture and fisheries* This is an e1ample of a recurrin& theme in our report8the different le!els of &o!ernment in the United %in&dom ha!e to work more closely to&ether* ?-* The United %in&dom is an asymmetrical Union* Not only are the four nations !ery dif,ferent in si9e, ut de!olution in )ales and Northern Ireland is different from de!olution in Scotland, and there is no de!olution for En&land* It is not our <o to say whether this should chan&e, or to make recommendations a out how En&land is &o!erned, ut we cannot i&nore the fact that the >arliament at )estminster is En&landEs parliament as well as the >arliament for the whole of the U%* )e can learn lessons from federal countries a out how to help dif,ferent le!els of &o!ernment to cooperate, ut the tidy solutions that work where e!ery part of a lar&er

country can e &o!erned in the same way cannot simply e applied here* ?A* The U% ,arlia#ent still has$ as a #atter o" law$ the power to legislate "or -cotland on de!ol!ed as well as reser!ed matters* &ut there is an i#portant convention according to which it does not do so unless it has the agree#ent o" the -cottish ,arlia#ent* This wor+s ver! well in practice and is probabl! the best exa#ple o" where -cottish and U% institutions alread! cooperate well together > ? 6The Commission made se!eral reform recommendations* It ad!ocated an e1plicit declara,tion of a U%=wide Esocial unionE*7 .0* )e think that there are certain social ri&hts which should also e su stantially the same, e!en when it is est that they are separately run in Scotland* The most important of these are that access to health care

and education should e, as now, essentially free and pro!ided at the point of need* And when ta1es are shared across the U% they should take account of that need* 4ur first recommendation is therefore that the Scottish and U% >arliaments should confirm their common understandin& of what those ri&hts are, and the responsi ilities that &o with them*

The Commission wanted to see more acti!e en&a&ement etween the U% >arliament and the Scottish >arliament, for e1ample throu&h a standin& committee of the two le&islatures* Some fine=tunin& of the allocation of policy areas etween Scotland and the U% were su&= aested* The Commission ar&ued that the Scottish >arliament should ha!e &reater ta1=raisin& powers* The Scotland Act .0?. &i!es le&al effect to many of the Caiman Commissions rec=ommendations* Amon& the more si&nificant enlar&ements of de!ol!ed powers is that the Scottish >arliament may set a rate of income ta1 for Scottish ta1payers and restrictions on the Scottish Go!ernment orrowin& money are rela1ed* :e ate continues a out still fur,ther de!olution, particularly of ta1 and spendin& powers, sometimes called cde!o ma1( or +de!o plus(* $O#,' T;E TEC;NICAL 3RACE)4R% 34R :EJ4LUTI4N The definitions of what is and is not +de!ol!ed( $a collo5uial, rather than a le&al, term' are detailed and sometimes comple1* 4ur aim is not to e1plore these in depth, ut instead to focus on the main features* As we ha!e already noted, de!olution is asymmetrical* This is not only

ecause En&land has een left out of the picture, ut also ecause the powers de!ol!ed, and the way in which they are defined, !ary etween Scotland, )ales, and Northern Ireland* Any system of allocatin& powers etween two le!els of &o!ernment has two main choices8it may either" define the powers that are e1ercised at national le!el and say that the su national unit has all other powers# or define the powers of the su national unit, sayin& that all other powers are e1ercised nationally* The de!ol!ed settlements use oth methods* The three de!olution settlements impose similar &eneral restrictions on the de!ol!ed &o!ernments and le&islatures* They may not le&islate or take e1ecuti!e action that is contrary to European Union law or Con!ention ri&hts* 4ne conse5uence of de!olution is that different policies, authori9ed y different laws, are ein& implemented in different parts of the United %in&dom* 4ne mi&ht say that this is the purpose of the constitutional process of de!olution* E1amples include" in Scotland there is free lon&=

term care for the elderly whereas En&land and )ales ha!e re<ected that policy# uni!ersity tuition fees were increased in En&land and )ales, ut not in Scotland# and school +lea&ue ta les( are not pu lished in )ales as they are in En&land* Scotland The Scottish >arliament and Scottish Go!ernment ha!e powers o!er +matters( that are not e1pressly +reser!ed( to the United %in&dom* In Sch* K to the Scotland Act ?@@H, +&eneral reser!ations( are" the constitution# re&ulation of political parties# forei&n affairs, etc*# the ci!il ser!ice# defence# and treason* The schedule &oes on to list +specific reser!ations( under !arious +heads( in some detail* The +heads( are" financial and economic matters# home affairs# trade and industry# ener&y# transport# social security# re&ulation of the professions# employ,ment# health and medicines# media and culture# and miscellaneous $co!erin& <udicial remu,neration and e5ual opportunities amon& other topics'* Northern Ireland The Northern Ireland Act ?@@H, s* / creates three cate&ories" e1cepted mattersK $which are intended ne!er to e de!ol!ed'# reser!ed matters(

$which may e de!ol!ed ut ha!e not yet een'# and +transferred matters(* Schedule . e1cepted matters are" the Crown# the U% >arliament# international relations# defence# control of nuclear, iolo&ical, and chemical weapons and other weapons of mass destruction# di&nities and titles of honour# treason# nationality, immi&ration and asylum# U% ta1# national insurance# !arious ta1 credits and enefits# +The Supreme Court, ut not ri&hts of appeal to the Supreme Court or le&al aid for appeals to the Supreme Court(# elec=tions in respect of the Northern Ireland Assem ly, the European >arliament and district councils# political parties# coina&e, le&al tender and ank notes# the National Sa!in&s Dank# national security# nuclear ener&y# re&ulation of sea fishin& outside the Northern Ireland 9one# re&ulation of acti!ities in outer space# the Northern Ireland Constitution Act ?@AB# and the office and functions of the Ad!ocate General for Northern Ireland $the principal le&al ad!iser, to the U% &o!ernment on Northern Ireland law'* Schedule B sets out reser!ed matters, which include" na!i&ation, ci!il a!iation, domicile# postal ser!ices# dis5ualification for mem ership of the

Assem ly# ci!il defence# >t . of the Ci!il Contin&encies Act .00/# minimum wa&es# financial ser!ices# telecommunications# human &enetics# and consumer safety in relation to &oods* +Transferred matters( are de!ol!ed under s* /* Cinisterial departments within the Northern Ireland E1ecuti!e include" education# enterprise, trade and in!estment# health, social ser!ices and pu lic safety# social de!elopment# employment and learnin&# <ustice# en!ironment# cul,ture, arts and leisure# re&ional de!elopment# and a&riculture and rural de!elopment* )ales Detween .00- and Cay .0??, under >t B of the Go!ernment of)ales Act .00-, the National Assem ly had power to make laws in the form of +Assem ly Ceasures(* 3ollowin& a refer=endum in fa!our of further de!olution, >t / of the .00- Act came into force in Cay .0??, &i!in& the National Assem ly le&islati!e powers in the form of+Acts of the Assem ly( within the +su <ects( set out in Sch* A* These su <ects are" a&riculture, forestry, animals, plants, and rural de!elopment# ancient monuments and historic uildin&s# culture#

economic de!elop,ment# education and trainin&# en!ironment# fire and rescue ser!ices and fire safety# food# health and health ser!ices# hi&hways and transport# housin&# local &o!ernment# National Assem ly for )ales# pu lic administration# social welfare# sport and recreation# tourism# town and country plannin&# water and flood defence# and the )elsh lan&ua&e* Le&islation is drafted in oth the En&lish and the )elsh lan&ua&es* The powers under >t / are su <ect to +&eneral restrictions(* Acts of the Assem ly may not remo!e or modify any function of a minister of the Crown that was in place efore the .00- Act came into force* 3our Acts of the U% >arliament cannot e modified" European Communities Act ?@A.# :ata >rotection Act ?@@H $alon& with The Re=use of >u lic Sector Information Re&ulations .00K'# ;uman Ri&hts Act ?@@H# and Ci!il Contin&encies Act .00/* Nor may pro!i,sions in the .00- Act relatin& to the Auditor General and )elsh pu lic records e altered* )hy the differences2 The different ways in which de!ol!ed powers are defined were discussed in the followin& report*

;ouse Sf Commons )elsh Affairs Committee, Go!ernment )hite >aper" Detter &o!ernance for )ales, 3irst Report of .00K=0-, ;C HB@ ?B@* )hilst the )hite >aper does not include any detail a out the way in which the limits of the National Assem lyEs powers are to e defined, the Go!ernmentEs written e!idence outlined two potential options to specify the su <ects on which the National Assem ly could le&islate $this was the model adopted in relation to Scotland in the Scotland Act ?@AH, which ne!er came into force'# or to pro!ide that the National Assem ly could le&islate on anythin& unless it was specifi,cally reser!ed to the U% >arliament and then to specify those reser!ed matters $which was the model adopted in relation to Scotland y the Scotland Act ?@@H'* ?/0* The Go!ernment has opted for the first option* It comin& to its decision it cited four main reasons* 3irst, that )ales unlike Scotland does not ha!e its own le&al system and institutions* Second, that )ales shared a common le&al <urisdiction with En&land, so a defi,nition alon& the Scotland ?@@H lines would e more complicated in )ales, and could

ha!e far reachin& conse5uences in terms of the common le&al <urisdiction* Third, that the list of reser!ed powers would e su stantially lon&er and more comple1 in )ales compared to Scotland* 3ourth, that the Scotland ?@AH model uilt on the e1ecuti!e function already de!ol!ed to the National Assem ly, and therefore could de!elop out of the e1istin& pattern of )elsh de!olution* ?/?* In his e!idence to us, >rofessor Rawlin&s, hi&hli&hted the pro lems with the Scotland ?@AH model* ;e ar&ued that, Ethe Assem ly only ha!in& power to le&islate where it is e1pressly authorised to do so carries stron& potential for time=consumin& and complicated pro lems of le&al competence, and, in turn, for inter&o!ernmental wran&lin& and e!en su ,stantial forms of liti&ationE* 3urthermore he reminded us that the ?@AH model was re<ected for Scotland in ?@@H on &rounds of Ecomple1ity from the need to spell out the de!ol!ed areas in considera le detailE* ;e concluded that ELord Richard was well aware of the En&land and )ales <urisdiction point, so his response was to take out the most o !ious thin&s relatin& to the En&land and )ales <urisdiction*** Lord

Richard took the !iew that this was a mana&ea le positionE* $e' ARE T;E :EJ4LUTI4N ACTS C4NSTITUTI4NS2 Some commentators predicted that liti&ation a out the scope of de!ol!ed powers would e fre5uent and contro!ersial* This has not pro!ed to e the case, thou&h in a num er of cases courts ha!e een called on to interpret the de!olution Acts* In an early case, Cr >eter Ro inson, a :emocratic Unionist mem er of the Northern Ireland Assem ly, took le&al action seekin& to 5uash the appointment of 3irst Cinister and :eputy 3irst Cinister in No!em er .00?* The ma<ority of the Assem ly had, after len&thy ne&otiations, a&reed to these appointments8 ut two days after the si1= week period prescri ed y s* ?-$H' of the Northern Ireland Act ?@@H for such an election* The two ministers, supported y the U% &o!ernment, ar&ued that the e1piry of the time limit did not affect the Assem ly(s powers to make lawful appointments* The Law Lords a&reed* Ro inson w Secretary of State for Northern Ireland 6.00.7 U%;LB., Lord Din&ham of Cornhill

?0* The ?@@H Act, as already noted, was passed to implement the Delfast A&reement, which was itself reached, after much tra!ail, in an attempt to end decades of loodshed and centu,ries of anta&onism* The solution was seen to lie in participation y the unionist and nationalist communities in shared political institutions, without precludin& $see s ? of the Act' a popular decision at some time in the future on the ultimate political status of Northern Ireland* If these shared institutions were to deli!er the enefits which their pro&enitors intended, they had to ha!e time to operate and take root* ??* The ?@@H Act does not set out all the constitutional pro!isions applica le to Northern Ireland, ut it is in effect a constitution* So to cate&orise the Act is not to relie!e the courts of their duty to interpret the constitutional pro!isions in issue* Dut the pro!isions should, consistently with the lan&ua&e used, e interpreted &enerously and purposi!ely, earin& in mind the !alues which the constitutional pro!isions are intended to em ody* Cr Larkin 6counsel for Cr Ro inson7 su mitted that the resolution of political pro lems y resort to the

!ote of the people in a free election lies at the heart of any democracy and that this demo,cratic principle is one em odied in this constitution* ;e is of course correct* Sections B.$?' and $B' e1pressly contemplate such elections as a means of resol!in& political impasses* Dut elections held with undue fre5uency are not necessarily producti!e* )hile elections may produce solutions they can also deepen di!isions* Nor is the democratic ideal the only constitutional ideal which this constitution should e understood to em ody* It is in &eneral desira le that the &o!ernment should e carried on, that there e no &o!ernmental !acuum* And this constitution is also seekin& to promote the !alues referred to in the precedin& para&raph* ?.* It would no dou t e possi le, in theory at least, to de!ise a constitution in which all politi,cal contin&encies would e the su <ect of predetermined mechanistic rules to e applied as and when the particular contin&ency arose* Dut such an approach would not e consistent with ordinary constitutional practice in Dritain* There are of course certain fi1ed rules, such as those &o!ernin& the ma1imum duration of parliaments

or the period for which the ;ouse of Lords may delay the passa&e of le&islation* Dut matters of potentially &reat importance are left to the <ud&ment either of political leaders $whether and when to seek a dissolution, for instance' or, e!en if to a diminished e1tent, of the crown $whether to &rant a dissolution'* )here constitutional arran&ements retain scope for the e1ercise of political <ud&ment they permit a fle1i le response to differin& and unpredicta le e!ents in a way which the applica,tion of strict rules would preclude* In the ne1t case, the Scottish courts considered the status of the Scottish >arliament, which was created y the Scotland Act ?@@H* Lord )atson ofln!er&owrie, amem er of the Scottish >arliament $CS>', proposed to introduce a pri!ate mem ers Dill to the Scottish >arliament, seekin& to an huntin& with do&s* Three pro= hunt campai&ners sou&ht an in<unction to pre!ent Lord )atson from doin& so# they said that Lord )atson recei!ed administrati!e and le&al assistance from an anti=hunt or&ani9ation, which they ar&ued amounted to remu,neration contrary to the Scottish >arliament rule

prohi itin& CS>s from en&a&in& in paid ad!ocacy* The Lord >resident $Lord Rod&er of Earlsferry' sittin& in the 3irst :i!ision, Inner ;ouse, Court of Session made the followin& statement* )haley P Lord )atson 4f In!er&owrie .000 SC B/0, Lord >resident The Lord 4rdinary 6the first=instance <ud&e7 &i!es insufficient wei&ht to the fundamental character of the >arliament as a ody which8howe!er important its role8has een created y statute and deri!es its powers from statute* As such, it is a ody which, like any other statutory ody, must work within the scope of those powers* If it does not do so, then in an appropriate case the court may e asked to inter!ene and will re5uire to do so, in a manner permitted y the le&islation* In principle, therefore, the >arliament like any other ody set up y law is su <ect to the law and to the courts which e1ist to uphold that law* In the ?@@H Act >arliament did, howe!er, put one important limitation on the powers of the court in proceedin&s in!ol!in& the Scottish >arliament* In s /0$B' and $/' 6*** 7 it pro!ided that in such proceedin&s the court should not &rant an order for

suspension, interdict, reduction or spe,cific performance ut mi&ht instead &rant a declarator# nor should it &rant any order a&ainst an indi!idual which would ha!e e5ui!alent effect* 6***7 Some of the ar&uments of counsel for 6Lord )atson7 appeared to su&&est that it was somehow inconsistent with the !ery idea of a parliament that it should e su <ect in this way to the law of the land and to the <urisdiction of the courts which uphold the law* I do not share that !iew* 4n the contrary, if anythin&, it is the )estminster >arliament which is unusual in ein& respected as so!erei&n y the courts* And, now, of course, certain inroads ha!e een made into e!en that so!erei&nty y the European Communities Act ?@A.* Dy contrast, in many democracies throu&hout the Commonwealth, for e1ample, e!en where the parlia,ments ha!e een modelled in some respects on )estminster, they owe their e1istence and powers to statute and are in !arious ways su <ect to the law and to the courts which act to uphold the law* The Scottish >arliament has simply <oined that wider family of parliaments* Indeed I find it almost parado1ical that counsel for a mem er of a ody

which e1ists to create laws and to impose them on others should contend that a le&ally enforcea le framework is somehow less than appropriate for that ody itself* Cem ers of the Scottish >arliament hold office y !irtue of the ?@@H Act and, a&ain, their ri&hts and duties deri!e ultimately from the Act* Nua6 7 mem ers of the >arliament, <ust as in all the other aspects of their li!es, they are in &eneral su <ect to the law and to the =deci,sions of the courts* 4f course, in ss /? and /. the Act makes certain specific pro!isions to ensure freedom of speech for mem ers of the >arliament and to permit proper reportin& of its proceedin&s* In addition s /0$/' reco&nises one particular respect in which the position of mem ers !is a !is the courts is different from the position of other people" in certain situ,ations the courts cannot &rant an order for suspension, interdict, reduction or specific per,formance $or other like order' a&ainst them* Dut the immunity thus &ranted to the mem ers of the >arliament is not &ranted in order to afford protection to the mem ers themsel!es ut simply to uttress the immunity of the >arliament from orders of that kind* In other respects the law applies

to mem ers in the usual way* In particular8to come to the specific issue in this case86Lord )atson7 is le&ally ound y the terms of Article - of the transitional order on mem ersE interests 6..7* If he reaches that Article, then he contra!enes the law of the land and indeed commits an offence* The reach may ha!e other conse5uences which make it proper for the ci!il courts to notice it* The ma<ority of the Court of Session $includin& the Lord >resident' nonetheless held that the temporary rules re&ulatin& CS>s( interests did not &i!e rise to ri&hts that could e enforced y mem ers of the pu lic in ci!il proceedin&s# sanctions mi&ht, howe!er, lie in retrospecti!e criminal prosecutions* In another case, a to acco multinational challen&ed the lawfulness of le&islation made y the Scottish >arliament* The To acco and >rimary Cedical Ser!ices $Scotland' Act .0?0 anned open display of ci&arettes in shops* Under the Scotland Act ?@@H, Sch* K, ;ead C Trade and Industry, !arious aspects of consumer protection were reser!ed to the U% >arliament* The 5uestion for the court was whether the .0?0

Act trespassed into those mat=ters* 4n appeal, the Court of Session was unanimously held that the .0?0 Act was within the Scottish >arliament s competence* Imperial To acco Ltd ! ;C LordAdwocate as Representin& The Scottish Cinisters 6.0?.7 ScotCS CSI; @, 6?/7, Lord >resident $Lord ;amilton' *** >arties efore us were in a&reement that the court should fa!our constructions which render the constitutional settlement coherent, sta le and worka le* I a&ree* Cr Cure further ar&ued that the statutory pro!isions should e read in a Q&enerous and purposi!e mannerQ* Reference was made to Ro inson ! Secretary of State for Northern Ireland 6.00.7 U%;L B. 8in particular to the speech of Lord Din&ham of Cornhill at paras ?0=??* Dut in that case a clear ack&round purpose $implementation of the Delfast A&reement' could e discerned* ;ere the purpose $discerni le from the statute itself' is the di!ision of functions etween the Scottish >arliament and the United %in&dom >arliament* There is nothin& in the statute or in its ack&round which su&&ests that one should read the pro!isions of Schedule K, or of any of

the other pro!isions of the statute, e1pansi!ely or restricti!ely* 4ne must simply interpret them ha!in& re&ard to any rele!ant le&islati!e ack&round8such as the Consumer >rotection Act ?@HA* In AIA General Insurance Ltd and others ! ;C Ad!ocate and others,.B the U% Supreme Court heard a challen&e from insurance companies challen&in& the lawfulness of pro!isions in the :ama&es $As estos= related Conditions' $Scotland' Act .00@, le&islation passed y the Scottish >arliament that sou&ht to re!erse in Scotland case law that has held that people who de!eloped asymptomatic pleural pla5ues in their lun&s as a result of e1posure to as estos did not ha!e an in<ury in respect of which an employer could ha!e tortious lia ility* Lord ;ope noted that +The 5uestion whether the principle of the so!erei&nty of the United %in&dom >arliament is a solute or may e su <ect to limitation in e1ceptional circumstances is still under discussion and continued" .. A piece of le&islation was temporarily in place until the Scottish >arliament had an opportunity in .000 to de!ise standin& orders of its own dealin& with mem ers( interests*

.B 6.0??7 U%SC /-, 6.0?.7 ? AC H-H* o TT, IA General Insurance Ltd and others ! ;C Ad!ocate and others 6.0??7 U%SC / 6K?7 )e do not need, in this case, to resol!e the 5uestion how these conflictin& !iews a out the relationship etween the rule of law and the so!erei&nty of the United %in&dom parliament may e reconciled* The fact that we are dealin& here with a le&islature that is not so!erei&n relie!es us of that responsi ility* It also makes our task that much easier* In our case the rule of law does not ha!e to compete with the principle of so!erei&nty* As I said in Fackson 6.00K7 U%;L K-7, para ?0A, the rule of law enforced y the courts is the ultimate controllin& factor on which our constitution is ased* I would take that to e, for the purposes of this case, the &uidin& principle* Can it e said, then, that Lord SteynEs endorse,ment of Lord ;ailshamEs warnin& a out the dominance o!er >arliament of a &o!ernment elected with a lar&e ma<ority has no earin& ecause such a thin& could ne!er happen in the de!ol!ed le&islatures2 I am not prepared to make that assumption* )e now ha!e in Scotland a

&o!ernment which en<oys a lar&e ma<ority in the Scottish >arliament* Its party dominates the only cham er in that >arliament and the committees y which ills that are in pro&ress are scrutinised* It is not entirely unthinka le that a &o!ernment which has that power may seek to use it to a olish <udicial re!iew or to diminish the role of the courts in protect,in& the interests of the indi!idual* )hether this is likely to happen is not the point* It is enou&h that it mi&ht concei!a ly do so* The rule of law re5uires that the <ud&es must retain the power to insist that le&islation of that e1treme kind is not law which the courts will reco&nise* 6K.7 As for the appellantsE common law case, I would hold, in a&reement with the <ud&es in the Inner ;ouse $.0?? SLT /B@, para HH', that Acts of the Scottish >arliament are not su <ect to <udicial re!iew at common law on the &rounds of irrationality, unreasona leness or ar itrar,iness* This is not needed, as there is already a statutory limit on the >arliamentEs le&islati!e competence if a pro!ision is incompati le with any of the Con!ention ri&hts" section .@$.'$d' of the Scotland Act ?@@H* Dut it would also e 5uite wron& for the <ud&es to

su stitute their !iews on these issues for the considered <ud&ment of a democratically elected le&islature unless authorised to do so, as in the case of the Con!ention ri&hts, y the constitutional framework laid down y the United %in&dom >arliament* NUESTI4NS In &eneral constitutional terms, what are the main differences etween the de!olu,tion arran&ements for Northern Ireland, )ales, and Scotland2 Ci!il ser!ants in Northern Ireland, )ales, and Scotland seek your ad!ice as to whether their respecti!e le&islatures may make le&islation on the followin& areas of policy* Uou will need to consult the rele!ant parts of the de!olution Acts# same=se1 marria&e# $ii' nuclear power# and $iii' the minimum hourly wa&e that employers must pay* ;ow ha!e the courts approached the task of interpretin& the de!olution Acts2 R4LE 43 SECRETARU 43 STATES 34R SC4TLAN:, )ALES, AN: N4RT;ERN IRELAN: >rior to de!olution in ?@@H, three mem ers of the U% &o!ernment(s

Ca inet were the Secretary of State for Scotland $the political head of the Scotland 4ffice', the Secretary of State for )ales $the )ales 4ffice', and the Secretary of State for Northern Ireland $the Northern Ireland 4ffice'* The posts in relation to )ales and Scotland are now held y min= isters who also ha!e other ministerial posts $reflectin& the lessenin& of the U% &o!ernment s day=to=day work in relation to those parts of the United %in&dom'* The fra&ility of the Northern Ireland de!olution settlement continued to re5uire a full= time minister in the U% &o!ernment* The Scotland 4ffice, :e!olution Guidance Note B" The Role of the Secretary of State for Scotland./ The Secretary of State for Scotland holds the post <ointly with another post in the Ca inet* In addition to his other ministerial duties, he continues to represent the interests of Scotland in Ca inet as Secretary of State for Scotland, particularly in those matters reser!ed to the Go!ernment y the Scotland Act* ;e is responsi le for the smooth =runnin& of the ScotlandEs de!olution settlement and acts as &uardian of the Scotland Act, especially in relation to orders made under its authority* The Secretary of State is supported on ministerial

matters y the >arliamentary Under Secretary of State for Scotland* Doth ministers are ad!ised on their work in relation to Scottish de!olution y the Scotland 4ffice, a distinct entity within the :epartment for Constitutional Affairs* Scotland 4ffice officials report to the Secretary of State and the >arliamentary Under Secretary of State for policy purposes* The Secretary of State and the >arliamentary Under Secretary of State are mem ers of most Ca inet Committees and Su =Committees touchin& their duties in relation to Scotland independently of the Secretary of StateEs other ministerial duties* The Secretary of State should therefore e copied in at the Scotland 4ffice for all rele!ant ministerial correspond,ence* ;e e1pects to e consulted y collea&ues on the impact their proposals will ha!e on Scotland and how they fit in with the terms of the Scottish de!olution settlement* The Secretary of State for Scotland promotes the de!olution settlement pro!ided for y the Scotland Act ?@@H y encoura&in& close workin& relations etween the U% :epartments and the Scottish E1ecuti!e, and etween the U% and

Scottish >arliaments* This does not mean actin& as a conduit for the necessary communication etween the Go!ernment and the Scottish Cinisters* Normally :epartments should deal with the Scottish E1ecuti!e direct* Dut the Secretary of State should e kept closely informed a out issues which in!ol!e oth reser!ed and de!ol!ed matters, and more &enerally a out relations with the Scottish E1ecuti!e* :epartments should therefore copy to the Secretary of State or the Scotland 4ffice all correspondence etween U% Cinisters and Scottish Cinisters* Scotland 4ffice ministers and officials can pro!ide ad!ice in relation to Go!ernment policy in Scotland* In particular, where collea&ues a&ree, Scotland 4ffice ministers may e a le to help with presentation when ma<or announcements are made on non= de!ol!ed matters that ./ https"RRupdate*ca inetoffice*&o!*ukRre source=li raryRde!olution=&uidance= notes in which the roles of the other two territorial Secretaries of State are also set out* will ha!e a ma<or effect in Scotland* They should inform Scotland 4ffice

ministers when such announcements are to e made* The Secretary of State for Scotland is the custodian of the Scotland Act ?@@H, and sec,ondary le&islation under the Act $QScotland Act 4rdersQ' should e made only with the a&reement of the Secretary of State* Scotland Act 4rders are used oth to implement and $occasionally' to amend ScotlandEs de!olution settlement* Scotland 4ffice ministers usually lead on >arliamentary proceedin&s on these orders and the process of a&reein& policy for and layin& such orders is mana&ed y the Constitutional Dranch of the Scotland 4ffice, who also ensure that the order is consistent with the Scottish de!olution settlement* Such 4rders often co!er wide policy areas and in!ol!e len&thy discussion etween the Scotland 4ffice, U% :epartments and the Scottish E1ecuti!e efore they can e made* In addition, the Secretary of State retains responsi ility for certain limited e1ecuti!e func,tions, nota ly in relation to the financial transactions etween the U% Go!ernment and the Scottish E1ecuti!e, in elections in Scotland and undertakes certain residual

functions for Scotland in reser!ed areas* It has een su&&ested that the three separate territorial Secretaries of State should e com= ined into a sin&le ministerial office $perhaps called the +Secretary of State for :e!olution', with responsi ility for the maintenance and de!elopment of de!olution*.K $e' INTERG4JERNCENTAL RELATI4NS Any system of decentrali9ed &o!ernance8whether federal or de!ol!ed8re5uires some institutions and procedures for mana&in& the relationships etween the national le!el and the other political units, and for ena lin& dialo&ue etween the political units* o LS Sueur, The Nature of Central Go!ernment in the United %in&domE, in :* 3eldman $ed*' En&lish >u lic Law, .nd edn $.00@, 41ford" 0U>', eh* ?, paras ?*A?=?*AB $footnotes omitted' $e' Inter&o!ernmental relations There are areas of policy o!er which <urisdiction is shared etween de!ol!ed institutions and central &o!ernment* Foint powers are those where it is a le&al re5uirement for

ministers from a de!ol!ed administration and U% ministers to act in a&reement and to&ether, or for U% Cinisters to act only after consultation with the de!ol!ed administration ministers $or !ice !ersa'* Concurrent powers are those which either U% or de!ol!ed administration minis,ters or oth are a le to e1ercise in Scotland, Northern Ireland or )ales* A Cemorandum of Understandin& and a series of supplementary a&reements $often referred to as EconcordatsE' pro!ide a framework for inter&o!ernmental relations within the United %in&dom* Concordats co!er such topics as how e1ecuti!e odies in Scotland, Northern Ireland, and )ales par,ticipate in decidin& the United %in&domEs stance on a&enda items efore the EU Council, re&ulation of re&ional incenti!es promotin& inward in!estment, and U% ministerial meetin&s with the fishin& industry in Scotland* .K R* ;a9ell, Three into 4ne )ont Go" The 3uture of the Territorial Secretaries of State $.00?, London" UCL Constitution Unit'* Relations etween the U% &o!ernment, Northern Ireland, Scotland, and )ales are on the face of it coordinated throu&h the Foint

Cinisterial Committee $FCC', esta lished under the Cemorandum of Understandin& supplemented y a num er of EconcordatsE &o!ernin& cooperation and coordination etween U% departments and the de!ol!ed administrations on particular areas of policy* In practice, more reliance has een placed on informal workin& rela=tionships etween officials and ministers than on the formal machinery of inter&o!ernmental relations* The FCC did not meet in plenary session etween .00. and .00H* The FCC on Europe, effecti!ely a su committee, has een the most acti!e, meetin& three or four times a year to discuss European Union affairs* Commentators and parliamentary committees ha!e e1pressed concern at the apparent lack of formality in the conduct of inter=&o!ernmental relations and the lack of transparency in work of the FCC* The only formal process for resol!in& any disputes that may arise etween the U% and the de!ol!ed administrations are the pro!isions in the de!olution Acts for Ede!olution issuesE a out le&islati!e competence to e decided y the U% Supreme Court*

Alan Trench, Q:e!olution" The witherin&=away of the Foint Cinisterial CommitteeE 6.00/7 >u lic Law K?B The 6FCC7 lies at the centre of the structure of inter&o!ernmental relations esta lished in the United %in&dom for de!olution* In its plenary form, this hi&h=le!el forum for the leaders of the U% Go!ernment, the Scottish E1ecuti!e, the National Assem ly for )ales and $when de!olution is not suspended' the Northern Ireland E1ecuti!e is supposed to meet e!ery ?. months* Dut as of Fune .00/, it had not met for o!er .0 months, since 4cto er .00.* )hat does this lack of meet,in& si&nify2 Is the FCC ein& allowed to wither away, and, if it is, does that matter2 In its ori&ins, the FCC8like much of the framework for inter&o!ernmental relations8 seems somethin& of an afterthou&ht* The su&&estion that it e esta lished emer&ed durin& the Lords Committee sta&e of de ate on the Scotland Dill in Fuly ?@@H, and was ela orated su se5uently in the Cemorandum of Understandin& pu lished in Fuly ?@@@, after the first de!ol!ed elections* The re5uirement was that the plenary FCC should meet at least annu,ally, to re!iew the workin& of the arran&ements for

inter&o!ernmental relations, discuss the impact of non=de!ol!ed matters on de!ol!ed ones and !ice !ersa, share e1periences re&ardin& de!ol!ed functions, and to QconsiderV $not resol!e' disputes etween administra,tions* As the FCCEs mem ership comprises the U% >rime Cinister, :eputy >rime Cinister, Secretaries of State for Scotland, )ales and Northern Ireland, and the 3irst Cinisters and :eputy 3irst Cinisters from Scotland, )ales and Northern Ireland, it is a &atherin& of the politicians most directly in!ol!ed in the workin& of de!olution and its implications* )hile any of the &o!ernments may call for a meetin& or refer matters to the FCC, the initiati!e for doin& so clearly lies with the U% Go!ernment, and U% Cinisters chair all FCC meetin&s* 4f the !ari,ous elements of the CommitteeEs remit, dealin& with disputes is clearly the most important, and closely linked to re!iewin& the arran&ements for liaison etween &o!ernments* As political differences etween the political units ha!e ecome more pronounced, there ha!e een calls for a more formal and transparent process* In .00- and .00A, the ;ouse of Lords Constitution Committee

added to the criticisms that the Foint Cinisterial Committee $FCC' was at risk of fallin& into disuse*.- The U% &o!ernment started callin& FCC meetin&s a&ain in .00H8a fact that was welcomed y the Caiman Commission* .- Go!ernment of )ales Dill, Ei&hth Report, Session .00K=0- $;L ?/.'# European Union $Amendment' Dill and the Lis on Treaty" Implications for the U% Constitution, Si1th Report, Session .00A=0H $;L H/', para* @-* Alan Trench, The Caiman Commission and ScotlandEs dis<ointed constitutional de atesE 6.00@7 >u lic Law -H-,-@/ The Caiman Commission 6***7 recommended eefed=up forms of inter&o!ernmental liaison and co= ordination $discussed in >art / of the report, especially paras*/*?-0=/*.0K'* )hether this will in fact e sufficient has to e 5uestioned* The formal machinery of inter=&o!ernmental relations was always limited, and the U% Go!ernment allowed e!en that to fall into disuse after .00.* The SN> &o!ernment in Scotland has sou&ht to re!i!e more formal mechanisms of inter&o!ernmental coordination since it took office in .00A, with a limited de&ree of success8the plenary FCC

met a&ain in Fune .00H for the first time in fi!e and a half years, and a new format for discussin& policy issues, the FCC $:omestic' met for the first time in Carch .00@ and a&ain in Cay .00@* Dut the second plenary FCC due in Fune .00@ was postponed indefinitely, and some officials su&&est that it is pro!in& difficult to find usiness to transact at the FCC $:omestic' &i!en the different powers de!ol!ed and policy interests of the three de!ol!ed administrations* If a more formal and structured set of meet,in&s encoura&e the U% Go!ernment to take de!olution seriously, that is a useful contri ution, ut the inherent !alue of such meetin&s is limited* Ceetin&s that the U% Go!ernment uses simply to tell the de!ol!ed what it is &oin& to do are unlikely to chan&e matters much, espe,cially if the root cause of the difficulties is where the oundary lies etween de!ol!ed and non=de!ol!ed matters* $f'T;E ENGLIS; NUESTI4N )hile there has een decentrali9ation of e1ecuti!e and le&islati!e powers to new odies in )ales, Scotland, and Northern Ireland, this has not occurred in relation to En&land $ y far the lar&est part of the United

%in&dom, with o!er H0 per cent of the total population'* Ro ert ia9ell, Introduction" )hat is the En&lish Nuestion2Q in R* ;a9ell $ed*' The En&lish Nuestion $.00-, Canchester" Canchester Uni!ersity >ress', p* ? En&land is the &apin& hole in the de!olution settlement" some elie!e that de!olution will not e complete, and the settlement will not sta ilise, until the En&lish Nuestion has een sol!ed# others elie!e that En&land can e left out indefinitely and de!olution confined to the Celtic frin&e* 4pinions !ary not only a out the answers, ut a out the nature of the 5uestion* Andrew Le Sueur, E3undamental >rinciplesE, in :* 3eldman $ed*' En&lish >u lic Law, .nd edn $.00@, 41ford" 0U>', ch* ?A, paras ?*A/=?*A$footnotes omitted' The Goto rum Sout of En&land 6***7 En&land is not a political unit# it has no e1ecuti!e ody or le&islature separate from the U% Go!ernment and the U% >arliament* Consideration of the &o!ernment of En&land has two aspects* 3irst, there are 5uestions a out the place of En&land within the United %in&dom, in particular the handlin& of En&lish

le&islation y the U% >arliament* A second aspect is the prospect of re&ional &o!ernment within En&land and whether a pro&ramme of decentralisa,tion of &o!ernment power within En&land is desira le* The term Ethe En&lish NuestionE has een coined as an o!erarchin& term for the de ates* o En&land and the U% >arliament The practical pro lem $accordin& to some', is that since ?@@H, C>s representin& )elsh, Northern Irish and Scottish constituencies in the U% >arliament ha!e continued to e a le to !ote on le&islation that applies only to En&land* It is said that this is unfair in &eneral and in particular on those occasions where a ma<ority of C>s from En&land oppose an initiati!e ut it is nonetheless passed ecause of !otes from C>s in other parts of the U% who were prepared to support the Go!ernment, e!en thou&h their constituents will not e affected y what is proposed* The Conser!ati!e >arty, amon& others, ad!ocate EEn&lish !otes for En&lish lawsE in which only C>s from constituencies in En&land would !ote on pro!isions in ills which apply only to En&land* Critics ar&ue that such a reform would undermine the United %in&dom, in whose >arliament all C>s

should e free to !ote e5ually on any issue* fi ' Re&ional &o!ernment within En&land 3or a num er of purposes, En&land is di!ided into nine re&ions* 4f these, only London at present has a democratically elected and accounta le unit of re&ional &o!ernment in En&land, in the form of the Greater London Authority $the GLA, consistin& of a directly elected Cayor and the Greater London Assem ly', a tier of &o!ernment a o!e local authorities $the B. London Dorou&hs'*Thou&h lackin& directly elected odies, each of the nine En&lish re&ions has a num er of odies which pro!ide strate&ic plannin& and o!ersi&ht* 3irst, there are nine Go!ernment 4ffices for the re&ions, the remit of which is oth to E<oin upE the work of !ari,ous central departments within the re&ions and, throu&h local knowled&e, to ha!e input into the de!elopment of &o!ernment policy for the area* Secondly, each re&ion also has a statu,tory ody known as a Re&ional :e!elopment A&ency $R:A', which has specific statutory powers related to economic performance* The R:As consist of a oard whose mem ers are appointed y a central

&o!ernment minister $or in the case of London, y the Cayor of London' from people drawn from usiness, local authorities, trade unions and !oluntary or&anisations# R:As ha!e si&nificant ud&ets ut no clear democratic mandate* Thirdly, out,side London, there are re&ional assem lies $=ori&inally called Ere&ional cham ersE', which consist of representati!es of local authorities in the re&ion plus appointed representati!es drawn from the re&ionsE social, economic, and en!ironmental sectors, Re&ional assem lies are not statutory odies ut they ha!e een conferred with a num er of statutory duties and powers" they must e consulted y R:As# they prepare Edraft re&ional spatial strate&iesE# and they pro!ide ad!ice to central &o!ernment on strate&ies for usin& in their re&ion* Re&ional assem lies ha!e few resources, no si&nificant e1ecuti!e powers, and little democratic le&iti= macy* 3ourth, in .00A, as part of the EGo!ernance of DritainE reform pro&ramme, the >rime Cinister appointed a minister for each of the re&ions $from amon& e1istin& ministerial posts'* There are also a ran&e of other odies operatin& at re&ional le!el, includin& Strate&ic

;ealth Authorities and Learnin& and Skills Councils* It is widely accepted that more needs to e done to impro!e accounta ility for re&ional le!el &o!ernance in En&land* In .00/, the Go!ernment proposed referendums in three of the En&lish re&ions $North )est, North East, and Uorkshire and the ;um er' on the creation of directly=elected re&ional assem lies* Dy a !ery lar&e ma<ority, !oters in the North East $often thou&ht to e the part of En&land with the stron&est re&ional identity' re<ected the propos,als and the other referendums did not take place* Since then, focus has turned to how local authorities and the U% >arliament could pro!ide etter accounta ility, includin& proposals for a ;ouse of Commons select committee for each re&ion* The a sence of an e1ecuti!e ody for the whole of En&land means that U% &o!ernment depart,ments are sometimes concerned with +whole=U%( matters and sometimes with En&land= only issues $see Do1 K*?'* The remit of some departments focuses almost e1clusi!ely on U% mat,ters" for e1ample, ;C Treasury, the Cinistry of :efence, the :epartment for International :e!elopment, and the 3orei&n and Commonwealth 4ffice* In

others8such as the :epartment for the En!ironment, Rural Affairs and 3ood $:E3RA', the :epartment of ;ealth, and the :epartment for Children, Schools, and 3amilies8 En&land=only work dominates $ ecause the compara le policy areas are de!ol!ed to )ales, Scotland, and Northern Ireland'* In 3e ruary .0?., an e1pert committee $+the Cc%ay Commission' e&an work +to con,sider how the ;ouse of Commons mi&ht deal with le&islation which affects only part of the United %in&dom, followin& the de!olution of certain le&islati!e powers to the Scottish >arliament, the Northern Ireland Assem ly and the National Assem ly for )ales(*.A D4I K*? );4LE=U% AN: ENGLAN:= 4NLU >4LICU AREAS QCentral &o!ernment( relatin& to whole U%M +Central &o!ernmentK relatin& to En&land only :efence Education 3orei&n and Commonwealth relations Rural affairs, fishin&, and food Ta1 and economic policies ;ousin& Immi&ration and nationality ;ealth Constitutional reform Tourism

;uman ri&hts and e5uality issues Aspects of trade and industry Ener&yTown and country plannin& A!iation ;i&hways Re&ulation of political parties MThese are some of the main areas of policy that are reser!ed mattersK under the Scotland Act, e1empted( or $currently' reser!ed under the Northern Ireland Act, and which are not enumerated as functions of the )elsh Assem ly Go!ernment under the Go!ernment of )ales Act .00-* NUESTI4NS )hat is the est answer to the En&lish Nuestion2 ;ow si&nificant is the process of de!olution in the United %in&dom2 G4JERNING L4CALLU A &reat deal of the acti!ity of &o!ernin& takes place at a local le!el, elow those of national and de!ol!ed &o!ernment* The main institutions throu&h which this occurs are the more than /00 local authorities throu&hout the United %in&dom* These !ary considera ly in si9e, oth in terms of their territorial area that they co!er and their populations*

These ha!e a ran&e of e1ecuti!e functions and also limited powers to make le&islation* .A http"RRtmc*independent*&o!*ukR o EIECUTIJE >4)ERS Le&islation confers responsi ility on local authorities for carryin& out e1ecuti!e functions o!er a ran&e of policy areas* E1amples include" plannin& and uildin& control# local authori,ties ha!e a duty to secure accommodation for people who are homeless, and to pro!ide or fund care homes for elderly and other !ulnera le people# re&isterin& irths, deaths, mar,ria&es, and ci!il partnerships# parkin& control# collectin& and recyclin& waste# runnin& parks and other recreational facilities# and mana&in& town centres and promotin& usiness 4ften, these functions are shared with the U% &o!ernment $in relation to En&land' or the de!ol!ed &o!ernments $in Scotland, )ales, and Northern Ireland'* E1ecuti!e action is car,ried out oth y elected politicians and politically neutral officials $called clocal &o!ernment officers(, rather than ci!il ser!ants('= Some decisions are made y the whole council, some y an e1ecuti!e committee of councillors $in effect, a +ca inetK', some y su <ect commit,tees $such

as a plannin& applications committee', and some decisions are dele&ated to local &o!ernment officers* Local authorities ha!e +schemes of dele&ation that set out where within their structure decision= makin& power resides*.H Some cities ha!e directly elected mayors with e1ecuti!e powers* Local authorities are re5uired to ha!e in place a system for seekin& competiti!e tenders from firms to carry out deli!ery of many of their ser!ices, such as the collection of refuse, pro!ision of school meals, and IT* The e1tent to which pu lic ser!ices are now deli!ered y the pri!ate sector has led commentators to descri e local authorities as +ena lers(, rather than pro!iders(* A recent inno!ation that has the capacity dramatically to chan&e the scope oflocal author,ity acti!ity is the +&eneral power of competence( created y s* ? of the Localism Act .0??* Localism Act .0??, s* ? Local authorityEs &eneral power of competence A local authority has power to do anythin& that indi!iduals &enerally may do*

Su section $?' applies to thin&s that an indi!idual may do e!en thou&h they are in nature, e1tent or otherwise8 unlike anythin& the authority may do apart from su section $?', or unlike anythin& that other pu lic odies may do* In this section Qindi!idualQ means an indi!idual with full capacity* )here su section $?' confers power on the authority to do somethin&, it confers power $su <ect to sections . to /' to do it in any way whate!er, includin&8 power to do it anywhere in the United %in&dom or elsewhere, power to do it for a commercial purpose or otherwise for a char&e, or without char&e, and power to do it for, or otherwise than for, the enefit of the authority, its area or per,sons resident or present in its area* The &enerality of the power conferred y su section $?' $Qthe &eneral powerQ' is not limited y the e1istence of any other power of the authority

which $to any e1tent' o!erlaps the &eneral power* Any such other power is not limited y the e1istence of the &eneral power $ ut see section K$.''* At second readin& of the Dill that ecame the .0?? Act, Eric >ickles C> $Con', Secretary of State for Communities and Local Go!ernment, said" ;C :e , ?A Fanuary .0??, c* K-? The reason why the &eneral power of competence is so important is that it turns the deter=mination re5uirements on their head* All those fun=lo!in& &uys who are in!ol!ed in offerin& le&al ad!ice to local authorities, who are asically conser!ati!e, will now ha!e to err on the side of permissi!eness* That is a su stantial chan&e *** The &o!ernment elie!es that the formula used is <ud&e=proof* Funior minister Andrew Ctunell C> $Li :em' assured collea&ues on the pu lic ill committee c<ust how road that power isK and, thanks to su sections $K' and $-', the courts will find it difficult8we ha!e een ad!ised that they will find it impossi le8to unpick thatK* Later he said, clarifyin& the

intended reach of the new &eneral power" >u lic Dill Committee, ? 3e ruary .0??, c* ?@B In the past, local authorities could only do thin&s that were permitted to them y le&islation* )e are now in!ertin& that and sayin&, QUou can do anythin& that isnEt for idden y le&isla,tion*Q That does not mean that we are takin& away the current for idden territory and sayin& to authorities that they can &o into the for idden territory* It is not sayin& that they can a an,don their statutory and le&al duties that are imposed y e1istin& le&islation* o LEGISLATIJE >4)ERS Local authorities ha!e le&islati!e power* Acts of >arliament may confer powers on local authorities to make dele&ated le&islation in the form of y=laws*.@ To take <ust two e1am,ples, )andsworth Dorou&h Council in London has made a y=law controllin& the num er of do&s walked y a person in parks and open spaces* The Seashore Dy=laws made y )est Cercia Town Council state that cNo person shall sell or ad!ertise tout or importune either !er ally or y the distri ution of hand ills or ad!ertsE and +No person shall reak in

a horse or other animal or ne&li&ently dri!e a horse or other animal in a race so as to cause dan&er or annoyance These are not su <ect to parliamentary scrutiny, ut, in many situations, a process of con,firmation is re5uired under which appro!al must e sou&ht from the U% &o!ernment minis,ter responsi le for local &o!ernment8which, in En&land and )ales, is the Secretary of State for Communities and Local Go!ernment* The Local Go!ernment Act ?@A. sets out !arious procedures that a local authority may ha!e to follow, which can include a re5uirement to place ad!ertisements in local newspapers &i!in& notice of its intention to make a y=law* Cany y=laws empower local &o!ernment officials to impose fi1ed penalty notices $typically WK0=WH0' for reaches of y=laws* Local Go!ernment Act ?BA., s* .BK >ower of councils to make yelaws for &ood rule and &o!ernment and suppression of nuisances* $?' The council of a district or the council of a principal area in )ales and the council of a London orou&h

may make yelaws for the &ood rule and &o!ernment of the whole or any part of the district, principal area or orou&h, as the case may e, and for the =pre!ention and suppression of nuisances therein* $.' The confirmin& authority in relation to yelaws made under this section shall e the Secretary of State* $B' Dyelaws shall not e made under this section for any purpose as respects any area if pro!i,sion for that purpose as respects that area is made y, or is or may e made under, any other enactment* Local authorities may also seek powers throu&h pri!ate Dills in the U% >arliament*B0 o T;E L4CALISC AGEN:A Current &o!ernment policy is to promote +localism(* In .0??, a ;ouse of Commons select committee looked at this critically* ;ouse of Commons Communities and Local Go!ernment Committee, Localism, Third Report of .0?0=?., ;C K/A, Conclusions and recommendations :efinin& localism and its aims

)e welcome the Go!ernmentEs commitment to localism and decentralisation* )e a&ree with the Go!ernment that power in En&land is currently too centralised, that each community should e a le to influence what happens in its locality to a much &reater e1tent, that there has een in the past too much central &o!ernment interference in the affairs of local authori,ties, and that pu lic ser!ices ha!e een insufficiently accounta le to their local populations* $>ara&raph ?K' The Go!ernmentEs definition of localism The e1planations of localism and decentralisation that the Go!ernment has thus far pro,!ided in!oke !ery diffuse aims from which it is difficult to construct a coherent picture of the end &oal* There is little clarity a out who will ultimately e responsi le for what* Increasin& the influence of local decision= makin& is ound to result in some unpredicta le outcomes, ut we recommend that the Go!ernment undertake to pro!ide a more detailed e1planation of the framework within which it en!isa&es such chan&es takin&

place and the limits that will e set to central inter!ention* A constitutional settlement, o!erseen y a <oint committee, could pro!ide such a framework, at least insofar as it relates to the role of local &o!ernment* $>ara&raph ./' 6***7 Xntral &o!ernment in a locaSist system Cinisters must rein in their inter!entionist instincts if the Go!ernmentEs localism a&enda is to e credi le* Central &o!ernment cannot ha!e it oth ways8on the one hand &i!in& local authorities the freedom to make their own choices, and on the other maintainin& that only one of those choices is the Esensi leE one* The Go!ernment must make its own choice" does it wish local authorities to e1ercise local discretion, or does it want to continue to prescri e and recommend courses of action centrally2 The lit,mus test of localism will e the Go!ernmentEs reaction to local decisions with which it disa&rees* The concept of E&uided localismE is an unhappy compromise which is neither helpful to local authorities nor as radical as the Go!ernment seems content to elie!e* $>ara&raph KA'

Cinisters are not alone in needin& to cur their appetite for inter!ention* Chan&in& the cultures of the ci!il ser!ice and of >arliament to support a more localist system will e crucial* The former will e decisi!e in ensurin& that CinistersE intentions are put into practice, and the latter in alterin& the parameters of de ate to reflect the distri ution of powers to local a&en,cies* 4pposition spokesmen, too, ear some responsi ility for ensurin& that central &o!ern,ment is not tempted to interfere eyond its proper remit* $>ara&raph KH' Settin& limits to localism Localism has its critics, and they ha!e le&itimate concerns" a out fairness, a out the need to safe&uard !ulnera le people, and a out ser!ices underperformin&* Some stake,holders and sections of the community e!idently do not trust the present forms of local democratic accounta ility to look after their interests when the apparatus of centralised, ureaucratic accounta ilityEs dismantled* )e recommend that the Go!ernment consider how est to help these &roups use the a!aila le means for holdin& their local ser!ice pro!id,ers to account, eyond the allot o1* In

particular, the Go!ernment must address the con,tri ution to accounta ility that can e made y ro ust8and if necessary enhanced8 local authority scrutiny functions* $>ara&raph A/' )e accept the case for some form of minimum national standards in ser!ices such as adult social care and child protection, where the needs of the most !ulnera le must e protected* )e recommend that where such standards are adopted they are formulated in consultation with local &o!ernment, in order to ensure that they reflect the le!el of cen,tral &o!ernment o!ersi&ht appropriate to a localist system and do not simply recreate an o!erly=inter!entionist performance re&ime* $>ara&raph AK' )e recommend that the Go!ernment make clear the principles on which it will deter,mine at what le!el different decisions will e made, and the &rounds on which inter!ention in local ser!ices will e deemed necessary* These 5uestions should not e decided purely on a case= y= case asis* Communities need clarity a out which decision=makers they should e seekin& to influence, and an e1plicit statement of the Go!ernmentEs intent would help to

fore,stall campai&nin& &roupsE reliance on national &o!ernment to enforce accepta le standards of ser!ice* A constitutional commitment to decentralisation would e one way of achie!in& this clarity# in the shorter term, we will e1pect the forthcomin& pro&ress report on localism in each department to e an opportunity to flesh out the principles on which the departments are e1pected to act* $>ara&raph A-' NUESTI4NS )hy is there a tier of elected local &o!ernment throu&hout the United %in&dom2 )hat is the si&nificance of the new +&eneral power of competenceK conferred on local authorities2 ;ow does this relate to their e1istin& powers and duties under numerous Acts2 C4NCLU:ING C4CCENTS The focus of this chapter has een on multile!el &o!ernin& within the United %in&dom* To continue e1plorin& the European Union as a tier of &o!ernment, turn to Chapter H $e1ecu,ti!e power' and Chapter ?. $treaties and le&islati!e processes'* The chapter has said relati!ely little a out the distri ution of <udicial

power within the United %in&dom* 3or discussion of the distinct le&al systems that e1ist in En&land and )ales, Scotland, and Northern Ireland turn to >art IJ Introduction, which considers the United %in&dom(s separate le&al <urisdictions, the ori&ins of which pre=date de!olution y centuries* 3URT;ER REA:ING ;adfield, D*, +:e!olution" a national con!ersation2K, ch* H in F* Fo well and :* 4li!er $eds', The Chan&in& Constitution, Ath edn $.0??, 41ford" 41ford Uni!ersity >ress' Lei&h, L, +The chan&in& nature of local and re&ional democracyK, ch*@ in F* Fo well and :* 4li!er $eds', The Chan&in& Constitution, Ath edn $.0??, 41ford" 41ford Uni!ersity >ress' Y 4NLINE RES4URCE CENTRE 3urther information a out the themes discussed in this chapter can e 8 found on the 4nline Resource Centre at www*o1fordte1t ooks*co*ukRorcR lesueur.eR >R4TECTING RIG;TS CENTRAL ISSUES

L 4ne of the key tasks of a constitutional system is to protect asic or fundamen,tal ri&hts* As we ha!e seen in Chapter B, the <ud&es, in de!elopin& the common law ha!e often claimed a role in protectin& constitutional ri&hts, althou&h there is a li!ely de ate etween those scholars who see &reat !alue in the common law, and those who dou t the courts( commitment to li erty and e5uality* Since )orld )ar II, many treaties seekin& to protect human ri&hts ha!e een a&reed y states* There is now an International Dill of Ri&hts( com= prisin& the Uni!ersal :eclaration of ;uman Ri&hts ?@/H, the International Co!enant on Ci!il and >olitical Ri&hts ?@-- and its two 4ptional >rotocols, and the International Co!enant on Economic, Social and Cultural Ri&hts ?@--* The United Nations ;uman Ri&hts Council monitors compliance* In this chapter we introduce the ways these international treaties ha!e influ=enced the Dritish pu lic law* )ithin Europe, the European Con!en,tion for the >rotection of;uman Ri&hts and 3undamental 3reedoms $theEC;R' is of particular importance* It creates a powerful enforcement mechanism throu&h the

European Court of;uman Ri&hts $ECt;R'* Since ?@--, people under the <urisdiction of the United %in&dom ha!e had a ri&ht of+indi!idual petition to the court, after they ha!e e1hausted domestic remedies* Althou&h the United %in&dom has een ound y the EC;R in inter= national law since ?@KB, it was not until the ;uman Ri&hts Act ?@@H that Con!ention ri&hts could e directly relied upon efore Dritish courts* The ?@@H Act is one of the most si&nificant pieces of le&islation enacted* In this chapter we e1am,ine its impact on the Dritish consti,tution, and how it is affectin& the relationships etween the <udiciary and >arliament, and the <udiciary and the e1ecuti!e* These issues are e1plored in relation to the case law in Chapter ?A* >oliticians are now discussin& whether new le&islation on human ri&hts is needed in the United %in&dom, per,haps a new +Dritish Dill of Ri&hts(* The chapter looks at the ar&uments for and a&ainst such a de!elopment and at the ways in which new le&islation mi&ht B This ultimately may need to e decided in the courts" see >art III Introduction*

See Do1 ?*? in Chapter ?* 3or further discussion, see ;ouse of Lords Constitution Committee, Referendums in the United %in&dom, Twelfth Report of .00@= ?0, ;L >aper @@*