The Multifaceted Constitutional Dynamics of U.K. Devolution: Peter Leyland

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The multifaceted
constitutional dynamics of
U.K. devolution
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Peter Leyland*
When it was introduced in 1999, devolution for Scotland, Wales, and Northern Ireland
was recognized as a constitutional change of pivotal importance. This article argues that de-
volution has been a dynamic process which has triggered further important constitutional
changes. The first section provides a conceptual discussion of devolution by comparing it with
federalism as a system of territorial government. In order to further develop the argument,
attention is then concentrated on the evolving characteristics of the respective systems in
Scotland, Wales, and Northern Ireland. Particular attention is devoted to crucial issues of
constitutional design. For example, this includes the failure to establish a link between revenue
raising and spending in Scotland; the creation of a Welsh Assembly without sufficient law-
making powers; the debate over the functions granted to the Northern Ireland executive. Next
the discussion turns to the so called West Lothian question which draws attention to the
most pronounced asymmetry caused by devolution, namely, the implications of not having
an equivalent level of devolved government for England. Finally, the discussion examines the
impact of devolution on legislative procedures and the use of legislative consent motions. The
article concludes by considering the trajectory of the changes to each devolved system and
related constitutional implications.
1. Introduction
The introduction of devolution under the new Labour government elected in 1997
was a radical constitutional change; however, it was not undertaken as part of a
wider strategy of constitutional transformation.1 Rather, the package of measures
contained in each devolution statute and subsequently ratified by referenda repre-
sented a distinct and pragmatic attempt to solve particular problems and aspirations
* Professor of Public Law, London Metropolitan University. Email: p.leyland@londonmet.ac.uk

1
For an overview of U.K. devolution, see Vernon Bogdanor, Devolution in the United Kingdom (1999).
I•CON (2011), Vol. 9 No. 1, 251–273 doi: 10.1093/icon/mor021

252 I•CON 9 (2011), 251–273
associated with Scotland, Wales, and Northern Ireland. The schemes set in place,
under the 1998 legislation, were meant to confer sufficient power to satisfy local polit-
ical conditions while also addressing the dissatisfaction felt in the most far-flung parts
of the United Kingdom with the centralizing tendencies that had been emanating from
Westminster under the previous Conservative administration.2 In its effect, devolu-
tion has also contributed significantly to creating what has been termed “a multi-
layered constitution,” featuring a hollowing out of central government power, which
has come to be located at several different levels and which is exercised in many different

ways, adding greatly to the complexity of modern governance.3
The discussion that follows demonstrates how devolution has been employed in the
United Kingdom in a somewhat different way from federalism as a mechanism for
organizing the division of powers and functions between national and subnational
government. However, it is mainly argued here that it is incorrect to regard these
changes as forming a new constitutional settlement.4 While it is true that the nature
of the Constitution has been transformed in fundamental respects, and that certain
local aspirations in Scotland, Wales, and Northern Ireland have been met, devolution
has triggered a process of ongoing constitutional change at many levels. There was a
lack of any overall reflection on the wider constitutional impact that would be caused
by the extreme asymmetry in the way power has been distributed and exercised.
For example, we will see that the Scottish government, now under the control of the
Scottish National Party, only views the current arrangements as a staging post on the
road to full independence. The Government of Wales Act (GWA) 2006 put the seal on
a second phase of Welsh devolution by granting the devolved bodies enhanced law-
making powers; however, this was also an acknowledgment of the limitations of the
original scheme. Devolution in Northern Ireland has been plagued with difficulties,
leading to suspension on three occasions up until its most recent and so far sustained
relaunch in 2007. More generally, the funding arrangements for devolution under
the Barnett formula,5 which have remained in place since its launch in 1999, have
been called into question and may soon be replaced by an alternative method of
revenue raising.
Perhaps the most serious constitutional imbalance has concerned the implications
for Westminster and the lack of any equivalent form of government for England. In
constitutional terms, it is as if each nation comprising the U.K. has embarked on a
journey with an uncertain destination. Viewed from a rather different perspective,
it will also become apparent that devolution has not only involved the introduction
of innovative legislative and oversight processes in Scotland, Wales and Northern
Ireland, which have so far proved more resistant to executive domination than their
counterparts at Westminster, but it has also had unanticipated consequences here,
as well. One such result, which will be discussed briefly below, has concerned the
2
See Carol Harlow & Richard Rawlings, Law and Administration 87 (3rd ed. 2009).
3
Public Law in a Multi-Layered Constitution 2–10 (Nicholas Bamforth & Peter Leyland eds., 2003).
4
See The Dynamics of Devolution: The State of the Nations 2005 1 (Alan Trench ed., 2005).
5
See below.
The multifaceted constitutional dynamics of U.K. devolution 253
continuing importance of Westminster legislation in the devolved areas of the United

Kingdom.6 In view of the many changes in the form of devolution alluded to in this
essay, it is suggested that not only is devolution itself a dynamic process but that it has
also exerted a major influence on the development of the U.K. constitutional system.
2. Comparing devolution to federalism

In terms of constitutional design, federalism and devolution have certain characteris-
tics in common but at the outset there are important distinctions which also need to
be made. The United States is frequently thought of as a prototypical federal system.
Certainly, it was the first modern constitution to exhibit key federal characteristics
which have been widely replicated in other constitutions.7 The core principle of
separation of powers is employed equally at national and at state level. Indeed, there is
an institutional-mirroring effect with the national institutions of president, Congress,
and Supreme Court almost precisely replicated in each state by governor, state legis-
lature, and a state supreme court, and with identical powers and functions granted to
all the states that comprise the federation.
Although the federation which comprises the United States of America has greatly
expanded from the original thirteen states that declared independence, there has been
a symmetrical approach to the conferment of powers and functions to the individual
states.8 In fact, the majority of federal systems are symmetrical9 in their conception,
and all federal systems have been conceived as part of a written constitution. On
the other hand, the asymmetry of devolution is one of its most distinctive features.
In broad terms, U.K. devolution has been described as involving “. . . the transfer of
powers from a superior to an inferior political authority. More precisely, devolution may
be defined as involving three elements: the transfer to a subordinate elected body, on
a geographical basis, of functions at present exercised by ministers and Parliament.”10
However, with U.K. devolution there has been no standardized constitutional method
of approaching the task. From this discussion, it will become clear that the devolved
systems for Scotland, Wales, and Northern Ireland are each significantly different
from the other, with each devolution statute functioning almost as a constitution for
that part of the United Kingdom, while no devolution of any kind has been introduced
for England. Moreover, it will be apparent from this discussion that a new dynamic

6
Alan Page, A Parliament that is Different?, in Devolution, Law Making and the Constitution 12 (Robert Hazell &
Richard Rawlings eds., 2005).
7
The Brazilian and Nigerian Constitutions are good examples of federal constitutions based on the U.S.
Constitution.
8
In the U.S., the states predated the introduction of the Constitution.
9
Germany has a form of cooperative federalism that also operates on a symmetrical basis; however, this
is where national and state governments (Länder) act as partners in pursuing the interests of the entire
nation. The upper house of the German Parliament, the Bundesrat, comprising representatives from the
Länder, approves legislation on behalf of the states. The Länder are then responsible for the implementa-
tion of these measures.
10
See Noreen Burrows, Devolution 3 (2000).
254 I•CON 9 (2011), 251–273
has been created by the lack of constitutional balance created by these extremely
diverse conditions.
Further, in a formal sense, federalism is often regarded as a method for sharing
sovereignty among governments within a single state as part of a rigid written con-
stitution. For example, in the United States the powers not delegated to Washington
under the U.S. Constitution are reserved to the states.11 Provided that there is no con-
flict with constitutional provisions, the states have legislative powers over certain
areas ranging from criminal law to family law. By way of contrast, a crucial feature

of devolution is that, despite the conferral of considerable powers, including in the
case of Scotland and Northern Ireland the introduction of a subnational body with
lawmaking power, legal sovereignty is retained by the Westminster Parliament. The
devolution legislation not only has elaborate provisions to prevent sovereignty from
becoming undermined, for example, in the form of prelegislative and postlegislative
scrutiny,12 but further, once an act of the Scottish Parliament or Northern Ireland As-
sembly has been passed, the Scottish High Court of Justiciary and ultimately the U.K.
Supreme Court will be responsible for deciding the limits of the legislative competence
of the Scottish Parliament or Northern Ireland Assembly. Judicial review can be used
to determine “a devolution issue,” and this may involve the Court’s declaring an act of
the Scottish Parliament or Northern Ireland Assembly invalid. In practice, the extent
to which this distinction is important might be contested.
Both federalism and devolution have been adopted as constitutional strategies to
address problems that are essentially political. It has been observed that “[f]ederalism
developed as a response to the ancient question of how to link separate political com-
munities together in order to pursue effectively objectives unobtainable alone, but
without submerging their own identities.”13 Federal constitutions have been intro-
duced as a method of accommodating diversity, especially in large nation-states. It
has been argued that “[a]t a deeper level, the contemporary constitutional agenda of
sub-state national societies also represents a theoretical challenge to those concep-
tual and normative assumptions which underpin a monistic approach to liberalism
and to liberal constitutionalism—assumptions which presuppose the existence of only
one people or demos within the state.”14 The identity of the individual units associ-
ated with the confederation is recognized, and this might include the accommoda-
tion of tensions between linguistic, ethnic, and religious groups.15 The special status
of Quebec in Canada would be an obvious example.16 Devolution has been adopted
11
See the Tenth Amendment, U.S. Constitution.
12
See Scotland Act 1998, section 31 and 32 and NIA 1998 ss. 6–10.
13
See Rod Hague & Martin Harrop, Comparative Government and Politics: An Introduction 228 (2004).
14
See Stephen Tierney, Constitutional Law and National Pluralism 9 (2004).
15
Such constitutions have been adapted to accommodate tensions between linguistic, ethnic, and religious
groups as in India, Malaysia, Canada. South Africa provides an example of a relatively recent constitu-
tion, which is federal in structure. See ch. 9 in Heinz Klug, The Constitution of South Africa: A Contextual
Analysis (2010): “Co-operative Government Regionalism and Local Government”; Richard Simeon,
Considerations of the Design of Federations: The South African Constitution in Comparative Context, Working
Paper 1998 (2), 1998 IIGR, Queen’s University.
16
See Tierney, supra note 14, at 68ff.
for similar reasons in Indonesia (Aceh), Spain (Catalonia, Basque Country, and
Galicia), and, perhaps most prominently, in the United Kingdom. In fact, as we will
observe below, the form of devolution introduced under the Northern Ireland Act
1998 results directly from the Belfast (Good Friday) Agreement of 1998. It not only
creates a unique system of compulsory power sharing at every level of decision making
to ensure joint participation by both communities in the processes of government but
also, as we will see when discussing Northern Ireland below, it requires supranational,
multileveled, and multilayered cooperation in the form of North / South Ministerial

Council and the British-Irish Council.
In many federal systems, the Supreme Court or a constitutional court is responsible
for policing the boundaries between the component parts of the system via judicial
review of legislation.17 In the case of the U.K., devolution issues can be referred to the
U.K. Supreme Court for judicial resolution; however, despite the range of measures
to rein in the powers of the devolved institutions in the U.K., the legal contestation of
these powers has so far been marginal.18 One reason for the lack of litigation associated
with the allocation of functions since the introduction of devolution has been because
concordats have been of practical importance for the administrative implementation
of devolution.19 Concordats emerged fairly late in the process and “represent a further
step down the road of juridification in the form of ‘bureaucratic law.’ ”20 Thus, for a
picture of U.K. devolution to come into any sort of focus we find that, certainly at an
administrative level, reference must be made to this developing body of nonjusticiable
soft law. Concordats consist mainly of a memorandum of understanding linked to
informal, mostly bilateral, agreements between the Westminster government and the
devolved administrations. They have been referred to as “a form of codification of the
processes of government”21 that have not only contributed significantly to continuity
and the smooth transition of policy but have also helped facilitate policy coordination
between the many overlapping layers of modern governance.22
In terms of administration, devolution should not be regarded as a fresh start. On
the one hand, the policy initiatives in Edinburgh and Cardiff have been and continue
17
A. V. Dicey recognized the authority of the courts as interpreters of the constitution and as one of the
characteristics of federalism. See A.V. Dicey, An Introduction to the Study of the Law of the Constitution 175
(10th ed. 1959).
18
See Graham Gee, Devolution and the Courts, in Devolution, Law Making and the Constitution 258 (Robert
Hazell & Richard Rawlings eds., 2005).
19
The Department of Constitutional Affairs (now renamed the Ministry of Justice) stated that: “The Con-
cordats are intended to promote constructive co-operation and communication. They set out a working
framework within which Ministers and officials may continue and develop relationships between the
administrations. The primary aim is to ensure that if either is planning action impinging on the responsi-
bilities of the other, it gives adequate forewarning.”
20
Richard Rawlings, Concordats of the Constitution, 116 L.Q. Rev. 258 (2000). See also Martin Laffin, Alys
Thomas, & Adrian Webb, Intergovernmental Relations after Devolution: The National Assembly for Wales, 71
Pol. Q. 223–245 (2000).
21
Richard Rawlings, The Shock of the New: Devolution in the United Kingdom, in Aufgabenverteilung und
Finanzregimes in Verhältnis zwischen dem Zentralstaat and seinen Unterreinheiten 83 (E. Riedel ed., 2001).
22
Id. at 276.
256 I•CON 9 (2011), 251–273
to be implemented by a cadre of civil servants schooled in the traditions of the U.K.

home civil service. On the other hand, the ground rules for the operation of devolution
have been negotiated by officials from the Westminster government mainly on their
terms. In consequence this network of concordats have been, in effect, employed as a
means of setting an unofficial seal on an existing bureaucratic culture centred upon
the influence of Whitehall and the Cabinet Office.23 In a positive sense this approach
helped to achieve continuity in policy administration in a changed constitutional
landscape but at the same time this has meant that existing civil service custom and

practice is perpetuated as part of these intergovernmental relations.24
At a certain level, federalism and devolution both concern the distribution of powers
and functions between a national and a subnational layer of government, and so,
in a practical sense, it is not surprising that there are many common issues to address.
For example, it will nearly always be the case that national government predominates
over economic management and retains responsibility for defense, foreign affairs,
international trade, and immigration. Further, certain laws relating to individual citi-
zens apply throughout the nation with common agencies for law enforcement. In both
cases there will be democratically elected institutions at the national and subnational
levels, often including a lawmaking process, although in other respects the precise
form of federal and of devolved systems will be adjusted to suit local conditions. This
means that there is no set pattern for the division of competences between national
and subnational governments, which is what distinguishes a federal system from de-
volution. But in both cases there is scope for changing the distribution of functions
and powers between the two levels of government. For example, policing and justice
powers were transferred to the Northern Ireland Assembly from the Westminster
government in April 2010, following the Hillsborough Castle Agreement. With respect
to the United States, Mark Tushnet has recently pointed to a contrary trend, observing
that the “[n]ational government is today essentially a government of plenary power
over all subjects” with national law pervading many areas apparently falling within
the province of the states. To illustrate the point he notes, somewhat ironically, that
robbing a neighborhood grocery store has been made a federal crime.25
In sum, it will be apparent that federalism and devolution, almost inevitably,
have shared characteristics since they are essentially addressing the same question,
namely, how to define the political organization prevailing within separate polities
while maintaining the union of the overarching political system.26 U.K. devolution
diverges from most forms of federalism in three crucial respects. These are: the start-
ling asymmetry of its design, which leaves England without any equivalent layer of
23
The Northern Ireland Civil Service is separate from the service in the rest of the U.K. and, as such, it
remains an exception to the notion of a unified civil service.
24
Peter Leyland, Inter-governmental Relations Post-Devolution in the UK: Coordination, Cooperation and Con-
cordats, in Regional Councils and Devolved Forms of Government 155–179, 165 (E. Conde, L. Pegoraro, &
A. Rinella eds., 2006).
25
See Mark Tushnet, The Constitution of the United States: A Contextual Analysis 160 (2009).
26
See Daniel Elazar, Federalism, in International Encyclopedia of the Social Sciences 356-361 (1968).
government; the fact that legal sovereignty is not divided but still ultimately retained
by the Westminster Parliament; and the manner of its administration by soft-law con-
cordats, which, in turn, have marginalized the role of the courts in resolving disputes
between central and devolved governments. These are distinctive features and, in
consequence, devolution should not be regarded as an intermediate step toward
federalism.27 Looking to the future, we should remember the pragmatism of the
original conception and regard this element as the main guiding principle of devo-
lution. We should therefore expect further incremental adjustments to the existing

schemes of devolution in Scotland, Wales, and Northern Ireland to meet the political,
economic, and legal challenges ahead.28
3. Reviewing the national dynamics

Devolution has resulted in the four nations that make up the United Kingdom having
different systems of government, although, in each case the introduction of devolution
has triggered further questions for constitutional resolution.
3.1. Scotland
Scotland has the strongest form of devolved government, reflecting the high degree of
support for devolution. Although devolution fell short of the objective of some nation-
alists, it was expected to satisfy the aspirations of most of the Scottish electorate. In
fact, lately there have been more strident calls for an independent nation, a trend to
some extent reflected in the political success of the Scottish National Party, which
formed a minority government after emerging as the largest party in the 2007 elec-
tions. The party is committed to holding a referendum on Scottish independence.
Scottish devolution is based on a single chamber Scottish Parliament (SP) of 129
elected members with full lawmaking powers over devolved functions.29 The SP is
elected for a four-year term.30 Following an election to the SP, a government is formed
after the SP has nominated a first minister. The first minister is empowered, in turn,
to appoint ministers from members of the Scottish Parliament (MSPs) in order to form
a Scottish executive (now called the Scottish government). The executive group of
ministers is roughly equivalent to the cabinet (under the Westminster system), and
the ministerial appointments are made subject to royal approval.31 The SP and
government have responsibility for many aspects of Scotland’s domestic policy; but at
27
The Liberal Democrat Manifesto for the 2010 general election, at p. 92, refers to addressing “the status of
England within a federal Britain, through the Constitutional Convention set up to draft a written consti-
tution for the UK as a whole.” No other party proposes any form of federal constitution.
28
Your Scotland, Your Voice: A National Conversation, Scottish Government, November 2009.
29
Scotland Act 1998, s. 6. The Scotland Act is herein after referred to as the SA. There is additional explan-
ation of the member system of election in the section on Wales.
30
SA s. 2; an election can be called prematurely in certain circumstances.
31
See SA s. 47.
258 I•CON 9 (2011), 251–273
the same time there are particular functions reserved for Westminster.32 The Scottish
government is the administrative organ that has taken over most of the powers of the
Scottish Office,33 and it is responsible for the implementation of policy in Scotland. The
SP also exercises an oversight function by way of “subject” committees, which shadow
the main Scottish departments.34 The lawmaking power of the SP, although described
as primary legislation, is not comparable with the Westminster Parliament’s primary
legislation; the SP is strictly limited to matters within the scope of its legislative
competence, reflecting the concern of Westminster to retain its legal sovereignty.35

In essence, Scottish devolution introduced a locally elected Parliament, and the
functions previously performed by the Scottish Office were assigned to the Scottish
government. This gave Scotland improved mechanisms of accountability that involve
an increased level of political participation and representation.36
From the outset, the arrangements in Scotland had weaknesses with a potential for
undermining the stability of the new structure. In particular, the Scottish Parliament
and government were granted limited tax-raising powers.37 These were unlikely to
be used because of the political unpopularity that would be generated by adding to
the tax burden in Scotland. This has meant that the method of funding for Scotland
and, incidentally, for Wales and Northern Ireland, has remained under the preexisting
block-grant system,38 which is determined by the Westminster government.39 In
one sense, the secure funding base made a considerable contribution to the smooth
transition at the time devolution was introduced. The relatively generous financial
provision from Westminster had allowed each devolved administration considerable
flexibility in funding the competences falling under its remit. This so-called Barnett
formula works by establishing a ratio by which the total spending is fixed in relation to
England. Thus, the levels of spending made available to Scotland, Wales and Northern
Ireland are related to the sums allocated in the same designated policy areas by the
Westminster Parliament.40 An overall budget is fixed annually by the Westminster
Parliament in each departmental field. The allocations for an increase or decrease in
32
See Scotland Act 1998, S. 29 and Schedule 4. This includes: education, law, courts, prisons, judicial
appointments, economic development, agriculture, fisheries, local government, the environment, housing,
passenger and road transport, forestry, and the arts.
33
Prior to devolution the secretary of state for Scotland was the cabinet minister with executive responsibility
for Scotland.
34
For a discussion of the SP’s lawmaking role, see Page, supra note 6.
35
See Scotland Act 1998 section 29(2)(b); Gee, supra note 18.
36
An impressive feature in Scotland and Wales is the proportion of women in the Scottish Parliament and
the Welsh Assembly.
37
These powers have not so far been used.
38
For a robust defense of the Barnett formula in preference to a needs-based formula, see Arthur Midwinter,
Territorial Resource Allocation in the UK: A Rejoinder on Needs Assessment, 36 Regional Stud. 563–567
(2002).
39
See Scotland Act 1998, Part IV ss. 73–79. Peter Leyland, ‘Fiscal Federalism’ and Reforming the Financial
Parameters of Devolution: Italy and the UK compared, Percorsi Costituzionale 237–247, 239 (2009).
40
In its original form, for every £85 on English services, Scotland received £10, Wales £5, and Northern
Ireland £2.75. See House of Commons Research Paper 98/8: The Barnett Formula, January 1998.
expenditure are made according to a ratio calculated on relative population size. In

effect, then, this formula has guaranteed an amount reflecting the proportion of the
spending allocated to England.
One destabilizing dynamic at work in this arrangement is that Scotland’s declining
population since devolution has resulted in a progressively less generous allocation.41
However, the conspicuous lack of any integral link between revenue raising and the
ability to spend at the devolved level has remained a more fundamental problem.
There are calls to increase the amount of revenue raising at the devolved level, and

to replace the current Barnett formula method of funding allocation with a needs-
based system for calculating the contribution from Westminster.42 Most significantly,
the Calman Commission—which was established by the Scottish Parliament and U.K.
government to review devolution ten years after its introduction—has recommended
the abolition of variable income tax and its replacement with a new Scottish rate of
income tax. This would be reduced by 10p in the pound while a new needs-based
block-grant allocation from Westminster would be reduced accordingly. In addition,
Scottish ministers would be given additional borrowing powers, and the Scottish
Parliament would have the power to introduce new taxes applying in Scotland,
though only with the consent of the Westminster Parliament.43
It is important to keep in mind, before we move on, that, as a response to the in-
tensity of nationalist sentiment, Scotland was granted the strongest form of devolved
government. Moreover, in a number of fields, such as education and care for the elderly,
the scope for policy divergence in comparison with England has been very apparent.44
The issue of “Sewel motions” with respect to areas of overlapping responsibility will
be discussed in a later section; still, the impact of any revision to the distribution of
competences between London and Edinburgh is also worth mentioning. The grant of
more competences to Scotland not only arises as a current, contentious issue, at a pol-
itical level, but it will also impact on the conduct of intergovernmental arrangements,
for example, by confirming the redundancy of the Scottish Office in connection with
the conduct of Scottish affairs.45 Lastly, although the Scottish Parliament was granted
both lawmaking powers and a limited capacity to introduce extra revenue by adding
to the income tax, it has in fact been the lack of any routine method of local revenue
41
For example, at the time when devolution was introduced in 1998 for every £100 of spending per head in
England, £132 was spent in Scotland. Neil Kay, The Scottish Parliament and the Barnett Formula, 24 Fraser
of Allander Inst. Q. Econ. Comment. 22-48 (1998).
42
David Williams, Is time running out for the Barnett Formula?, Public Finance, July 23, 2009.
43
Serving Scotland Better: Scotland and the United Kingdom in the 21st Century, Final Report–June 2009,
Recommendation 3.1–3.7. In the 2010 general election only the Labour Party specifically mentioned
the Calman approach to revising the financing of devolution. See A Future Fair to All, Labour Party Mani-
festo, 2010, 9:6. Elect a Champion The Scottish National Party Manifesto 2010 advocates, on p. 1, “fiscal
autonomy for Scotland.” An Invitation to Join the Government of Britain, Conservative Party Manifesto,
2010, p. 83.
44
See Margaret Arnott & Jenny Ozga, Nationalism, governance and policy-making in Scotland: The Scottish
National Party in Power, 30 Pub. Money & Mgmt. 91–96, 94 (2010).
45
Barry Winetrobe, Scottish Devolution: Developing Practice in Multi-Layer Governance, in The Changing
Constitution 217 (Jeffrey Jowell & Dawn Oliver eds., 6th ed. 2007).
260 I•CON 9 (2011), 251–273
raising that has emerged as the most obvious weakness of the Scottish system. This
shortcoming has prompted proposals for substantial changes to the financial param-
eters of the system which forms part of the 2010–2011 legislative program at West-
minster. At the time of writing in April 2011 the proposals contained in the Calman
Commission report to change the rate of Scottish income tax were in the process of
being enacted by the Westminster Parliament in the Scotland Bill 2011.

3.2. Wales
The most limited form of devolution was devised for Wales.46 Although Wales retained
its distinctive language and culture when originally brought into the U.K., from the
standpoint of law and administration it lacked Scotland’s distinctive legal and edu-
cation system and Wales was more integrated with England. Moreover, it was clear
when devolution was introduced that there was much less popular support for this
change in Wales.47 However, the limitations of the Government of Wales Act 1998
were such that the devolved institutions in Wales have already been granted add-
itional powers following the passage of the Government of Wales Act 2006. The major
original difference was that the Welsh Assembly, unlike the Scottish Parliament and
Northern Ireland Assembly, was not granted the power to pass legislation in its own
right. The fact that Welsh bills had to take their place in the queue before being shep-
herded through the Westminster Parliament by the Welsh secretary was regarded
as a serious drawback.48 Otherwise the Welsh Assembly only had the power to pass
secondary legislation.49 In consequence, there were almost immediate calls after
devolution to give the Welsh Assembly the power to pass laws.50 The Westminster
government responded by granting the Assembly powers to propose a form of law
known as a “Measure of the National Assembly of Wales.”51 These measures are
enacted by first receiving scrutiny and approval by the Assembly and, then, the
measure is referred to the Westminster Parliament for approval by resolution of each
house before being recommended as a new form of Order in Council.52 This procedure
created a special form of delegated legislation which potentially could be vetoed at
Westminster. However, in practice, the new procedure overcame the problem of
securing the passage of legislation required for Wales through the Westminster Par-
liament. The revised arrangements for Welsh legislation might have proved prob-
lematic if there was a strong conflict of wills between the Welsh Assembly and the
46
For a compelling study of the parameters of Welsh devolution, see Richard Rawlings, Delineating Wales:
Constitutional, Legal and Administrative Aspects of National Devolution (2003).
47
The margin in favor of Welsh devolution in the referendum was less than 0.2 percent.
48
Richard Rawlings, Law Making in a Virtual Parliament: the Welsh Experience, in Devolution, Law Making and
the Constitution (Robert Hazell & Richard Rawlings eds., 2005).
49
GWA 1998 ss. 64–68. These powers might be compared to those available to local authorities.
50
See the Richards Commission.
51
Government of Wales Act 2006, s. 93.
52
GWA 2006 s. 94. Orders in Council are usually secondary legislation issued under powers in a parent act,
and they are often used for transferring powers and responsibilities.
government in power at Westminster—for example, if different political parties had

a majority in the Assembly and at Westminster. In another sense, these measures to
enhance the lawmaking capacity of the Welsh Assembly53 have a wider, incidental
impact, as there is now distinctively “English” legislation introduced before the
Westminster Parliament.54 A referendum in accordance with the provisions of the
Government of Wales Act 2006 was held in March 2011 which approved by a large
majority (63.5 per cent for with 36.5 per cent against) the conferral of full legislative
powers upon the Welsh Assembly.55 In consequence, the Welsh Assembly in common

with the Scottish Parliament and Northern Ireland Assembly will soon have powers to
pass legislation concerning the policy areas which fall under its competence.
There are some obvious parallels between Scotland and Wales with respect to the
electoral system and the organization of the legislative and executive bodies.56 The
Government of Wales Act 1998 set up a single chamber Assembly for Wales, consist-
ing of sixty members57 who must be elected every four years by an additional member
system. Each elector is given two votes. Assembly members for each constituency are
returned by simple majority, while the four Assembly members for each region are
returned by a system of proportional representation based on party lists.
In common with Scotland, the Welsh Assembly is required to form policy and take
decisions in its particular areas of responsibility. Also, as in Scotland, the cabinet style
of government is formed following an election. The newly elected members of the
Welsh Assembly vote for a first minister. Once elected, the first minister has the power
to appoint an Executive Committee of Assembly Secretaries, which forms the equiva-
lent of a cabinet. The ministerial portfolios of this executive committee (the combina-
tions of policy areas allocated to the individual assembly secretaries) determine the
areas of competence of the scrutiny committees (or subject committees) that are sub-
sequently formed to provide executive oversight. The appointments to the executive
committee can be from a single party or a combination of parties.
As with Scotland, the Welsh executive took over, by means of transfer orders, most of
the administrative functions of the secretary of state for Wales under the Government
of Wales Act 1998.58 Cabinet members have the equivalent of departmental respon-
sibility for their given policy areas. Although the National Assembly of Wales was
formed as a single corporate body, a de facto division emerged postdevolution be-
tween the Welsh Assembly government and the Welsh Assembly as a representative
53
See Better Governance for Wales, Cm. 6582, 2005.
54
Whereas English and Welsh legislation were often combined the introduction of Assembly Measures with
a different procedure means that the Westminster Parliament now passes legislation which only applies
to England. This trend will be accentuated as the Welsh Assembly acquires its own law making powers.
See Richard Rawlings, Hastening Slowly: The Next Phase of Welsh Devolution, Pub. L. 824–852, 841
(2005).
55
GWA 2006 s. 104 and s. 105. See http://www.bbc.co.uk/news/uk-wales-politics-12648649.
56
GWA 1998, ss. 3–7.
57
An obvious reason why the Welsh Assembly has fewer members than the Scottish Parliament is because
Wales has a smaller population.
58
GWA s. 22(2) and schedule 2.
262 I•CON 9 (2011), 251–273
body. The Welsh Assembly government has been recognized under the Government
of Wales Act 2006 as an entity separate from, but accountable to, the National
Assembly. One significant difference between the approach to devolution in Scotland
and Wales is that while the Scottish Parliament was granted general competence,
subject to the reserved matters under the Scotland Act, in the case of Wales powers
were conferred according to particular areas of policy.59 The Assembly and executive
are also responsible for many Welsh nondepartmental governmental organizations,
funded and appointed by government.60

From this brief discussion, it will be apparent that there are clear parallels between
the general frameworks of Scottish and Welsh devolution, including for example, the
method of election and the way a devolved executive is formed. This resemblance will
grow a great deal closer should the proposal to give the Welsh Assembly full lawmaking
powers gain the approval from the Welsh electorate in 2011. However, the Welsh
Assembly has no devolved tax-raising powers (unlike the proposals for Scotland), and
no such powers are in immediate prospect.
3.3. Northern Ireland

The Belfast (Good Friday) Agreement of 1998, which was negotiated between the
British and Irish governments and the main political players in Northern Ireland,
shaped almost every detail of the form of devolved government in Northern Ireland.
As the replacement to the Stormont system introduced in 1922 under the Ireland Act
1920, which broke done in 1972, it was the second attempt at introducing devolution
to address the issues raised by a community strongly divided on religious grounds.61
A unique form of devolution was introduced in 1999 following the Belfast agreement
based on a system of compulsory power sharing between the unionist and republican
communities.62 This scheme is based on “. . . the need to obtain (minority) nationalist
consent” so that “the institutions of the new dispensation are consociational at both
the legislative and executive levels, with a stipulation that public power must be exer-
cised in accordance with the principle of ‘parity of esteem’ between the two communi-
ties.”63 After an election there is a further process in the formation of the executive to
determine the allocation of ministerial posts and other positions.
The point is that “[a]ll of the institutional arrangements are based on principles of
cross community support. Thus there is no single person who is head of government in
59
The principal matters devolved are: agriculture, forestry, fisheries and food, environmental and cultural
matters, economic and industrial development, education and training, health, housing, local govern-
ment, social services, sport and tourism, town and country planning, transport, water and flood defenses,
and the Welsh language.
60
For example, the Welsh Health authorities and the Welsh Tourist Board.
61
Brigid Hadfield, The United Kingdom as a Territorial State, in The British Constitution in the Twentieth Century
599–604 (Vernon Bogdanor ed., 2003).
62
See, for example, Northern Ireland Act s. 16(3), 17(5).
63
Colm Campbell, Fionnuala Ní Aoláin, & Colin Harvey, The Frontiers of Legal Analysis: Reframing the
Transition in Northern Ireland, 66 Mod. L. Rev. 317–345, 331 (2003).
Northern Ireland. A bicephalous head of government ‘the First Minister’ and ‘Deputy
First Minister’ take charge of a multi-party executive.”64 Under the revised arrange-
ment, following the St. Andrews Agreement,65 the nominating officer of the largest pol-
itical designation nominates a person as first minister while the nominating officer of
the second largest political designation nominates a person to hold office as deputy first
minister. A method of proportional representation determines the allocation of minis-
terial posts and other positions.66 Furthermore, the notion of power sharing is carried
over into the decision-making process itself. Key decisions have to be taken on a cross-

community basis, in the sense that for a decision to be approved there has to be a ma-
jority for the measure among unionists and nationalists.67 Any agreement would have
to be founded on satisfying the basic demands of the conflicting factions. Thus, changes
to these basic elements would only be possible with the consent of each community.
The devolved assembly in Northern Ireland, once chosen, then elects an executive,
which assumes full legislative and executive authority for all devolved matters.68
The Belfast (Good Friday) Agreement of 1998 included a complex supranational
dimension that also involved the Irish Republic and the distinct nations consti-
tuting the U.K. Although Northern Ireland itself was born out of Ireland’s troubled
history,69 the United Kingdom and the Republic of Ireland are now separate, inde-
pendent nations and coequal member of the European Union. Irish Nationalists have
a united Ireland as their ultimate goal. Under the Northern Ireland Act this can only
be achieved with the consent of the majority.70 However, to go some way toward sat-
isfying the affinity that nationalists might feel with Ireland, the Belfast (Good Friday)
Agreement contains some important provisions involving Ireland. The North/South
Ministerial Council (NSMC) was formed to bring together members of the executive
of the Northern Ireland Assembly and representatives of the Irish government for
the purposes of cross-border cooperation on issues of common interest.71 Six North/
64
Burrows, supra note 10, at 86. The single-transferable-vote method works as follows: Quota = total votes
cast in a constituency, divided by the number of seats, plus one. Any candidate reaching the quota is
elected and surplus votes from any candidates exceeding the quota are redistributed to other candidates
until all the seats are filled.
65
See Northern Ireland (St. Andrews Agreement) Act 2006, s. 20.
66
See Northern Ireland Act 1998, ss. 18 and 19.
67
In order to achieve a proportional weighting between the two communities all elected members regard-
less of party must be designated nationalists, unionists, or other. For parallel consent, there must be
consent of more than 50 percent in each of these designated categories. Alternatively there can be a
“weighted majority” of more than 60 percent, which must include 40 percent of designated unionists
and 40 percent of designated nationalists.
68
It is worth noting that in the case of Northern Ireland the secretary of state for Northern Ireland (a cabinet
minister at Westminster) has taken over responsibility for the officials that run the executive at times
when the devolved institutions have been suspended.
69
Hadfield, supra note 61, at 591ff.
70
Northern Ireland Act 1998 s. 1.
71
The British-Irish Council has been established as a body to consider broader mutual interests with the
U.K., and it consists of representatives from the Scottish Parliament, Welsh Assembly, Channel Isles, and
Isle of Mann.
264 I•CON 9 (2011), 251–273
South implementation bodies have been established as part of the NSMC to implement
policy.72
By way of contrast, the unionists were keen to consolidate the area’s connection
with the remainder of the United Kingdom. As part of the same agreement, the British-
Irish Council was established as a body to consider broader mutual interests with the
U.K., and it includes elected representatives from the Scottish Parliament, the Welsh
Assembly, the Channel Isles, and the Isle of Mann, as well from Northern Ireland. In
seeking greater integration between nations and dependent territories it has features

comparable with the Nordic Council, which also includes a combination of nations
and autonomous regions. One should add that the British-Irish Council does not
include distinct representation for England.73 The latter’s avenue of participation may
be found in a further institutional structure with a supranational aspect, the British-
Irish Intergovernmental Conference, which meets regularly to promote cooperation
between Ireland and the United Kingdom on matters of mutual interest, in particular,
criminal justice, security, prisons, and policing. Meetings are attended by ministers of
the Northern Ireland executive, when matters concerning Northern Ireland are on
the agenda. The effect of this multiplicity of interwoven institutional contacts is to
cement engagement and cooperation at a number of levels.74
Devolution in Northern Ireland was designed specifically to bring peace. Although
based on the election of an Assembly with lawmaking powers and with competences
similar to those of Scotland and Wales, the Northern Ireland system displays many
unique characteristics, most notably: the method of election of the Northern Ireland
Assembly; the degree of permanent power sharing at every level of government; the
emphasis on peace and reconciliation through the recognition of human rights and
the promotion of equality of opportunity;75 and the dedicated national and supra-
national bodies (discussed above) set up to satisfy the respective aspirations of both
communities. The fact that devolution has been suspended on three occasions, before
it was restored most recently in May 2007, illustrates the fragility of these arrange-
ments. Not only are there still some dissident republican groups in Northern Ireland
which refuse to accept devolution but also the viability of the entire process may be
threatened by outstanding issues, for example, those relating to security and policing,
which were not fully resolved as part of the original agreement.76
72
These bodies comprise: Waterways Ireland; the Food Safety Promotion Board; Inter Trade Ireland;
The Special EU Programmes Body; The Foyle, Carlingford and Irish Lights Commission; and The Irish
Language Body.
73
See Vernon Bogdanor, The British-Irish Council and Devolution, 34 Gov’t & Opposition 287–299 (1999).
74
See Peter Leyland, Il British-Irish Council: governance multilivello e cooperazione intergovernativa dopo la
devolution, in Isole nel Diritto Pubblico ed Europeo 106ff (T. Frosini ed., 2007).
75
Northern Ireland Act 1998, Part VII.
76
Police and justice powers were devolved to a Northern Ireland Department of Justice on April 12, 2010,
after prolonged negotiations, and the new department is overseen by a Justice Committee of the Northern
Ireland Assembly.
3.4. The West Lothian question and the consequences for England
We next turn to England, by far the most populous part of the United Kingdom,77
which was entirely omitted from the devolution equation in the sense that no equiva-
lent nationwide layer of regional or devolved government was proposed to coincide
with devolution elsewhere. Nevertheless, devolution has exerted a significant influ-
ence on the workings of the Westminster system as well as prompting calls for fur-
ther constitutional reform. The so-called West Lothian question has been recognized

since the conception of devolution, and it will simply be referred to here as an im-
portant constitutional issue created by the introduction of asymmetrical devolution.
In essence, establishing a Scottish Parliament and, to a lesser extent, a Northern
Ireland Assembly and a Welsh Assembly plays havoc with the notion of representa-
tive government in the United Kingdom. Westminster Members of Parliament (MPs)
representing English, Northern Irish, and Welsh constituencies no longer vote on the
devolved matters, which now become the responsibility of devolved bodies; however,
the Scottish, Northern Irish, and Welsh MPs at Westminster retain the right to vote
on all bills coming before the Westminster Parliament, including those concerning
domestic policy for England. Furthermore, as a result of the transfer of many domestic
functions to the Scottish, Welsh, and Northern Irish executives, the Scottish, Northern
Irish, and Welsh Westminster MPs have a greatly reduced role to play with regard to
their own constituents. The obvious line of accountability for the devolved areas in
domestic affairs is through their representatives in Edinburgh, Belfast, or Cardiff.78
The other related question is the lack of any equivalent level of representation for
England. Voices of discontent at the lack of provision for England have been heard most
loudly in the socially disadvantaged English regions bordering Scotland and Wales.
This is where one finds the strongest perception of having missed out economically in
comparison with the devolved parts of the U.K.79 Otherwise, there has been minimal
attention paid to assessing the impact of devolution on the nondevolved parts of the
U.K.80 Nevertheless, since the advent of devolution the failure to provide a layer of
comparable government for England has become an emerging issue that has not been
addressed.81 The Campaign for an English Parliament, as its name implies, presents a
case for the introduction of an English Parliament.82 A proposal for a body equivalent
77
England (51.4), Scotland (5.1), Wales (2.9), Northern Ireland (1.75), Office of National Statistics 2008.
78
The significance of Westminster legislation over devolved matters requires Westminster’s Scottish MPs
to continue to be the guardians of Scottish interests. See Alan Page & Andrea Batey, Scotland’s Other
Parliament: Westminster Legislation about Devolved Matters in Scotland since Devolution, Pub. L. 501–524,
522 (2002).
79
See e.g., Campaign for the English Regions: http://www.cfer.org.uk/home.htm; Giving the People a
Voice: A Campaign for Yorkshire’s White Paper (September 2001). Campaign for an English Parliament.
80
For fuller discussion of these issues see The English Question (Robert Hazell ed., 2006). See also Bogdanor,
supra note 1, at 266.
81
The Regional Development Act 1998 introduced a new policy for economic regeneration by dividing
England into nine regions.
82
Meg Russell & Guy Lodge, The Government of England by Westminster, in The English Question 88ff (Robert
Hazell ed., 2006).
266 I•CON 9 (2011), 251–273
to the Scottish Parliament appears to have some merit, since setting up a Parliament
for England could provide the constitutional basis for correcting the glaring asymmet-
ries relating to representation, accountability, and administration. The introduction
of an English Parliament would also bring the U.K. closer to having a genuine federal
system.
However, there are some obvious reasons why such a proposal has little chance
of implementation.83 First, it enjoys limited support within any of the mainstream
political parties or, more widely, with the English electorate.84 Second, an additional

Parliament for England with equivalent powers to the Scottish Parliament would be
a strong competitor to the Westminster Parliament, which would no longer have a
pivotal role in relation to domestic issues. Third, a uniquely English Parliament would
be yet another elected political body requiring a fresh cohort of politicians at a time
when there is already evidence of voter fatigue with existing elected political insti-
tutions and politicians. Fourth, establishing an English Parliament would prompt a
wider debate about the financial provisions on which devolution is based and, in so
doing, open up fresh controversy over the allocation of resources within the U.K.85
In turn, such controversy might provide further impetus in Scotland for Scottish
independence. Vernon Bogdanor has recently argued that if English nationalism
were to move from culture to politics it would seriously undermine the union.86 Fifth,
an English Parliament would be very costly to introduce. Although there is some
evidence that English nationalism has been growing recently there has been little
enthusiasm in England, as a whole, for an English Parliament or, indeed, for any
equivalent kind of constitutional reform.87
Another response to the asymmetry was the Labour government’s flirtation with
regional governance in England which exactly coincided with devolution.88 The
Regional Development Agencies Act 199889 was initially a vehicle for the introduction
of a new policy for regional economic regeneration.90 The 1998 act divided England
into eight regions (plus London) and created Regional Development Agencies (RDAs)
in order to coordinate regional economic development. The new agencies were made
responsible for formulating regeneration strategies to promote business efficiency,
83
The issue of an English Parliament is also discussed in Brigid Hadfield, Devolution and the Unanswered
English Question, in The Changing Constitution 288ff (Jeffrey Jowell & Dawn Oliver eds., 6th ed. 2007).
84
See, e.g,. John Curtice, What the people say – if anything, in The English Question 88ff (Robert Hazell ed.,
2006).
85
See, e.g., David Heald & John Short, The Regional Dimension of Public Expenditure in England, 36 Regional
Stud., 743, 752–753 (2002).
86
Vernon Bogdanor, The New British Constitution 108 (2009).
87
Paul Kingsnorth, The Progressive Case for England, The Guardian, Aug. 26 2008.
88
See Peter Leyland, Post Devolution: Crystallising the Future for Regional Government in England, 56 Northern
Ireland Legal Q. 435, 453 (2005); John Tomaney, The Evolution of Regionalism in England, 36 Regional
Stud. 721–731 (2002).
89
Robert Hazell & Brendan O’Leary, A Rolling Programme of Devolution, in Constitutional Futures:
A History of the Next Ten Years 36-40 (1999).
90
See Regional Development Agencies Act 1998, Schedule I: East Midlands, Eastern, North East, North
West, South East, South West, West Midlands, Yorkshire and the Humber and London.
investment, and competitiveness within their areas91 by forging links and formalizing
relationships with the business sector at regional level. The next step in Labour’s
exploration of regional governance was a proposal to introduce a directly elected
regional government with very limited powers in regions where the proposals were
supported by a referendum.92 In the only attempt to launch such an elected assembly
in the North East region, the scheme was decisively rejected in a referendum and then
dropped.93 Of course, had these very weak regional assemblies been established on an
uneven basis, it would have added further to the lack of consistency in the provision of

representative government in the United Kingdom.94 The upshot is that only London
has a directly elected mayor and a twenty-five-member directly elected London
assembly, operating at a level between Westminster and local government, in the
form of the inner and outer London boroughs.
An alternative approach to the problem of voting rights for Westminster MPs,
which is much less radical than resorting to an English Parliament or to some form of
regional government for England, would be to introduce a new political convention
or to implement new procedures and rules within the U.K. Parliament that would
prevent Scottish and Northern Irish Westminster MPs95 from voting on legislation not
applying in Scotland and Northern Ireland.96 It should be pointed out that any attempt
to restrict the voting rights of Scottish, Welsh, and Northern Irish MPs at Westminster
would be politically controversial, since Labour traditionally relies heavily on the
votes of MPs in Scotland and Wales, where its support is concentrated while Conser-
vative support is strongest in England.97 A further problem in introducing any re-
strictive rule regarding the way legislation is considered by MPs, as it passes through
Parliament, concerns the technical difficulties in drafting legislation with this consid-
eration in mind; for example, where there are mix of different clauses, some of which
only apply to particular parts of the U.K..98 Although the 2010 Conservative Party
manifesto included a pledge to introduce “English votes for English laws,”99 following
the general election the ruling Conservative–Liberal Democrat coalition announced
its intention to set up a commission to consider the West Lothian question, including
the related issue of the voting rights of Westminster MPs.100
91
Regional Development Agencies Act 1998 ss. 4 & 5.
92
See White Paper: Your Region, Your Choice: Revitalising the English Regions, 2002, Cm 5511.
93
A referendum was held in 2004 under the Regional Assemblies (Preparations) Act 2003.
94
See Leyland, supra note 88, at 435–461.
95
The same rule presumably applying to Welsh MPs, assuming that the Welsh Assembly gains lawmaking
powers following the 2011 referendum.
96
See Michael Keating, The UK as a post-sovereign polity, in Devolution and British Politics 323 (Michael
O’Neill ed., 2004).
97
Russell & Lodge, supra note 82, at 84ff.
98
For more detailed discussion, see Brigid Hadfield, Devolution, Westminster and the English Question, Pub. L.
301 (2005).
99
See Conservative Party Manifesto, 2010, p. 84. William Hague, Michael Howard, and David Cameron,
when leader of the opposition, have supported this idea.
100
See the Conservative Lib-Dem agreement reached after the 2010 election.
268 I•CON 9 (2011), 251–273
4. Devolution and legislation

The legislative procedures used by the devolved legislatures include some elements
that appear very novel in contrast with those employed by the Westminster Parlia-
ment. For example, draft bills have been used routinely in Scotland to allow for greater
consultation and to provide scope for more participation, with the relevant subject
committees of the Scottish Parliament taking detailed evidence from interested par-
ties during a period of scrutiny before the legislation goes through its parliamentary

stages.101
It is interesting that the procedure at Westminster has since been modified to allow
for the much more frequent publication of draft bills in order to facilitate greater con-
sultation before the legislation goes through its parliamentary stages.102 The latest
published guidelines from the U.K. Cabinet Office make this clear: “The Government is
committed to publishing more of its Bills in draft before they are formally introduced to
Parliament, and to submitting them to a Parliamentary Committee for pre-legislative
scrutiny where possible.”103 At Westminster, smaller specialist departmental select
committees normally undertake the task of prelegislative scrutiny but do not examine
legislation during its formal passage through Parliament. On the other hand, the sub-
ject committees, which operate in all the devolved legislatures, have been designed
to combine the specialist executive oversight function of House of Commons depart-
mental select committees with the scrutinizing function of the House of Commons
public bill committees, which are responsible for examining legislation during its com-
mittee stage in the Commons.104 These subject committees also differ from both the
public bill committees and the select committees at Westminster in that they were
intended to have a powerful legislative role, being able to introduce bills in their own
right.105
Another interesting dynamic relating to the legislative activity of the Scottish
Parliament and Northern Ireland Assembly concerns a practice that has developed
to determine whether the devolved legislatures always need to legislate when a mat-
ter falls within their competence. As already explained, in theory at least, devolution
has left intact Albert Venn Dicey’s core principle of U.K. Parliamentary sovereignty.
101
http://www.scottish.parliament.uk/business/bills/billguidance/gpb-1.htm#21 at par 2.3. Written sub-
missions to the Economy, Energy and Tourism Committee of the Scottish Parliament with respect to the
Protection of Workers (Scotland) must be submitted by 3rd September 2010 and oral evidence will be
taken between September and December 2010.
102
Dawn Oliver, The Modernization of the United Kingdom Parliament, in The Changing Constitution 169 (Jeffrey
Jowell & Dawn Oliver eds., 6th ed. 2007), and Dawn Oliver, Improving the Scrutiny of Bills: The Case for
Standards and Checklists, Pub. L. 219–247 (2006).
103
See Cabinet Office guide to making legislation para 22(1) last updated 11 May 2010 at http://www.
cabinetoffice.gov.uk/making-legislation-guide/publication_in_draft.aspx. This initiative was pioneered
by Robin Cook as Leader of the House of Commons in 2004.
104
Page, supra note 6, at 8.
105
Christopher Carman & Mark Shephard, Committees in the Scottish Parliament, in The Scottish Parliament
1999–2009: The First Decade 25 (Charlie Jeffery & James Mitchell eds., 2009).
Westminster is still able to legislate for any part of the U.K., and the devolution legis-
lation, at any time, can be repealed or modified, as was the case with the Government
of Wales Act 2006 (which increased the powers of the Welsh Assembly). It should
also be remembered that the distinctive status of Scotland, Wales, and Northern
Ireland was previously recognized through special procedures that were in place in
the Westminster Parliament prior to devolution in order to oversee the passage of
legislation directed at these parts of the United Kingdom. Nevertheless, it was predicted
that following devolution the supremacy of Parliament would have a “different and

attenuated” meaning, so that “instead of enjoying a regular and continuous exercise
of supremacy, [Westminster] will possess merely a nebulous right of supervision. . .
.”106 In other words, in practice, Westminster would find it difficult to legislate against
the wishes of the Scottish Parliament or the Northern Ireland Assembly postdevolu-
tion.107 Moreover, there was an expectation that a convention would be established
whereby the U.K. Parliament would not normally legislate with regard to devolved
matters, and that Westminster legislation applying to Scotland and Northern Ireland
would be an unusual occurrence and would take place only with the agreement of the
relevant devolved legislature.108
Since devolution, the so-called Sewel convention has emerged,109 the idea behind
it being to recognize that the Westminster Parliament retains (given its legal sover-
eignty) full legal power to legislate on devolved matters while also recognizing that
the spirit of devolution implies that political power rests with the Scottish Parliament
or the Northern Ireland Assembly. The government thus undertook not to support
relevant legislation in the Westminster Parliament without the prior consent of the
Scottish Parliament or Northern Ireland Assembly. This consent is embodied in a
Sewel motion or, as it is otherwise termed, a “legislative consent motion.” Rather
surprisingly, a more detailed review of the legislative record reveals that, in fact,
Westminster legislation applying to Scotland has abounded since 1999.110 This has
106
Bogdanor, supra note 73, at 291.
107
“Devolution of legislative competence to the Scottish parliament does not affect the ability of Westminster
to legislate for Scotland even in relation to devolved matters. Nevertheless, as paragraph 4.4 of the White
Paper explained, we envisage that there could be instances where it would be more convenient for le-
gislation on devolved matters to be passed by the United Kingdom Parliament. However . . . we would
expect a convention to be established [now referred to as the Sewel Convention] that Westminster would
not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish
parliament.” See Paul Bowers, “The Sewel Convention,” House of Commons Library, SN/PC/2084, 25
November 2005.
108
The “Sewell convention” (see note 109) acknowledges that three types of legislation require the con-
sent of the Scottish Parliament to be proceeded with: Westminster legislation for devolved purposes;
Westminster legislation altering legislative competence; and Westminster legislation altering executive
competence.
109
The “Sewel convention” is a colloquial term for the U.K. government’s stated policy on legislation con-
cerning devolved matters in the U.K. Parliament. It is named after the government minister Lord Sewel,
who set out the terms of the policy in the House of Lords during the passage of the Scotland Bill 1997–98
on July 21, 1998.
110
See generally, Page & Batey, supra note 78, at 501–524.
270 I•CON 9 (2011), 251–273
occurred to a much greater extent than anticipated. Before a motion is put, the mat-
ters are discussed first by the relevant subject committee of the Scottish Parliament.
Since the Scottish election in 2007, consent motions were passed by the Scottish
Parliament with respect to fifteen pieces of legislation.111
By way of contrast, in Northern Ireland the legislative consent motions (not
referred to in Northern Ireland as Sewel motions) were little used, initially, during
the period between 1999 and 2003 when the Assembly was frequently suspended.112
However, the trend since the Assembly resumed operating in May 2007 seems to

be broadly similar to that discernible in Scotland,113 although the Northern Ireland
Assembly had no formalized procedures with regard to legislative consent. Until the
2010–2011 session, there were only guidance notes114 outlining the process which
the U.K. government and the Northern Ireland executive should follow when seeking
consent from the Assembly for such a motion.115
To some degree, the use of Sewel motions could be accounted for by the fact that
the same party was in power both in Westminster and Scotland and shared a commit-
ment to common policy objectives during the initial phase of devolution. Moreover,
there is a need to comply with international obligations on a nationwide basis116 and
for Scottish participation in particular initiatives involving the whole of the U.K.117
Also, in certain areas there may be an advantage in having common regulatory meas-
ures.118 Alan Page and Andrea Batey have explained that there were straightforward
practical reasons for the continuing dominance of U.K. departments in promoting
legislation across borders. For example, seeing legislation enacted on a U.K. basis
prevents unacceptable delay in the introduction of measures likely to be popular
with the electorate in Scotland, while leaving more time for the Scottish executive to
pursue its own agenda of reform. Another reason for the popularity of Sewel motions
111
These were for the Climate Change Bill, Criminal Justice and Immigration Bill, Dormant Bank and Building
Society Account Bill, Education and Skills Bill, Health and Social Care Bill, Pension Bill, Housing
and Regeneration Bill, Statute Law (Repeals) Bill, Energy Bill, Policing and Crime Bill, Local Democracy,
Economic Development and Construction Bill, Welfare Reform Bill, Marine and Coastal Access Bill, The
Borders Citizenship and Immigration Bill.
112
Gordon Anthony & John Morison, Here, There and (Maybe) Here Again: The Story of Law Making for Post-
1998 Northern Ireland, in Devolution, Law Making and the Constitution 179, 192 (Robert Hazell & Richard
Rawlings eds., 2005).
113
The eight Bills before the Assembly which required a Legislative Consent Motion in 2007–2008 were the
Child Maintenance and Other Payments Bill, The Dormant Bank and Building Society Accounts Bill, The
Climate Change Bill, The Criminal Justice and Immigration Bill 2007, The Health and Social Care Bill,
The Education and Skills Bill, The U.K. Energy Bill, The Pensions Bill.
114
Outline of Assembly Procedures on Legislative Consent Motions, provided by the Legislative Programme
Secretariat of the Office of the First Minister and Deputy First Minister.
115
The Assembly is amending its standing orders from 2010 in relation to legislative consent motions in line
with the recommendations of the NIA Committee on Procedure to provide greater clarity and transparency.
See Report: 34/08/09 Committee on Procedures, 15 September 2009.
116
The Political Parties, Elections and Referendums Act 2000.
117
Food Standards Act. See Page and Batey above at p. 511.
118
Regulation of Investigatory Powers Act and the Financial Services and Markets Act. Page & Batey, supra
note 78, at 512.
has been to avoid the prospect of legal challenge to the competency of Scottish legisla-
tion in politically controversial areas. This is because Westminster legislation, unlike
Scottish legislation, is not open to direct challenge in the courts. In consequence it has
been explained that “[w]here there is [likely to be] disagreement between London and
Edinburgh over whether matters are devolved, the executive may find itself effectively
faced with a choice between consenting to Westminster legislation in areas it regards
as devolved, and the risk that the U.K. law officers will refer any Scottish bill to the
Judicial Committee of the Privy Council (now to the U.K. Supreme Court).”119

The Sewel convention, according to Page and Batey, allows Scotland to have the
best of both legislative worlds. They point out: “Without it, the stark choice would be
to do without worthwhile legislation in Scotland or, in those cases within the legisla-
tive competence of the Scottish Parliament, to put aside [its] own legislative priorities
to make room for a separate Bill. . . .”120 The evidence so far indicates that the Scottish
Parliament and Scottish executive have assumed a much less prominent legislative
role than seemed likely, given the powers granted to them under the Scotland Act (the
same point, to some extent, applies to Northern Ireland). The evidence also suggests
that, although there has been marked policy divergence in certain fields, there has
also been, as a result of Sewel motions, a continuing drift toward uniformity, which
pervades the devolved system of government.121
5. Conclusion
Devolution is now accepted by all the main national political parties as well as the
nationalist parties in Scotland and Wales and the main parties in Northern Ireland
as an important part of the constitutional landscape. However, it has been argued in
this article that the introduction of devolution, as part of the U.K. uncodified consti-
tution, is not truly a settlement at all; rather, it has set in motion a constitutional pro-
cess of considerable complexity. It has many diverse implications, though it is without
any overtly general or overarching objective for the United Kingdom. Instead, the aim
has been to provide specifically tailored institutional responses for Scotland, Wales,
and Northern Ireland. In part, this is a reflection of the British “make do and mend”
approach to constitutional questions.
Despite the fact that devolution was introduced to deflect nationalist trends, nation-
alists are either in power or share power in all the devolved bodies. Moreover, the
Scottish Nationalist Party is keen to press for a referendum on independence. In prac-
tice, the attempt to fix the dissatisfaction felt in Scotland, Wales, and Northern Ireland
has posed a whole new set of questions. Most obviously, devolution draws attention
to disparities in the Westminster Parliament and the lack of an equivalent level of
government for England. The imposition of any restrictions on the voting rights of
119
Page & Batey, supra note 78, at 517.
120
http://www.scotland.gov.uk/About/Sewel/KeyFacts.
121
Id. at 502.
272 I•CON 9 (2011), 251–273
MPs from Scotland, Wales, and Northern Ireland would certainly have a major
impact on the functioning of the Westminster Parliament. Turning to another dimen-
sion, the financial parameters of the entire system have been increasingly criticized
and it has already been noted that a Scotland Bill making fundamental changes to
the present method of financing in Scotland has been introduced during the current
legislative session.122 In addition, there have been and will continue to be changes to
the structure of the devolved bodies and their powers. For example, the conferral of
full legislative powers on the Welsh Assembly is a further change in prospect following

approval at the referendum held in March for 2011.123
The dynamics of devolution do not simply concern modifications to the complex
structure of the institutions, the financial parameters, and the allocation of powers
and functions. It should be remembered that, for many advocates, the main rationale
for this project was to allow the respective parts of the U.K. to pursue the policies that
would receive popular support at devolved level. From this standpoint, then, devolu-
tion can be regarded as a substantial step toward granting local autonomy through
the operation of the new institutions established in Edinburgh, Cardiff, and Belfast.
As Michael Keating points out: “Scotland’s financial settlement is unusual in inter-
national comparison, since it combines a transfer of accounting of the whole of
the Executive’s spending with complete freedom of allocation.”124 Exactly the same
point applies to Wales and Northern Ireland. In other words, where a devolved admin-
istration decides to pursue a policy, which differs from that followed or approved by
Westminster, they cannot be financially constrained from doing so.
There are, however, added complications when it comes to divergence in the pro-
vision of social policies. As Bogdanor observes: “Devolution allows the non-English
parts of the Kingdom to develop their own distinctive priorities in public policy. But
the Welfare State was founded on the principle that the needs of the citizen should be
determined not locally, but by central government, which alone could balance the
requirements of different parts of the Kingdom, and the needs of those living in differ-
ent parts of the Kingdom.”125 To take one prominent example, regarding residential
care for the elderly, the Scottish government has provided a general entitlement to
such care that goes considerably beyond that available in the remainder of the United
Kingdom.126 The implications would arguably be much more serious if the decision
by the Scottish government had been to cut back on such services so that they were
much less generous than those in the remainder of the U.K.
122
The Queens Speech delivered on May 25, 2010, announced the government’s intention to introduce a
Scotland Bill to grant the Scottish Parliament more power over taxation and borrowing in line with the
recommendations of the Calman Commission.
123
Jon Shortridge, New Development: The Evolution of Welsh Devolution, 30 Pub. Money & Management 87–90
(2010).
124
Michael Keating, Policy Convergence and Policy Divergence in Scotland under Devolution, 39 Regional Stud.
453, 459 (2005).
125
126
See, for example, Alison Bowes & David Bell, Free Personal Care for Older People in Scotland: Issues and
Implications, 6 Soc. Pol. & Soc’y 435–445 (2007).
The impact of the egregious asymmetry that devolution has brought to policy
formation and public administration in the United Kingdom has to some extent
been masked by more than a decade of prosperity. However, the onset of a period of
cutbacks in levels of public expenditure and budget allocation is likely to mean that
devolution will face renewed examination.127 One response is to suggest that “the
logic of devolution points to a written constitution,”128 which would serve, in effect,
as an anchor by consolidating a given set of constitutional arrangements relating to
devolution or a federal system. Perhaps, it might also be linked to a constitutional duty

to maintain a base level of social welfare. For example, if we assume that the Westmin-
ster Parliament leaves the devolved authorities in place, then “[a] reasonably set-
tled division of responsibilities between London and the other capitals may” emerge,
as Rodney Brazier argues, amounting to “a practical expression of subsidiarity in the
United Kingdom. A new federal constitution would ensure that the devolved systems
would be protected from infringement by the Parliament of the United Kingdom. . . .”129
On the other hand, there is little sign of any consensus materializing in support of
a fully codified constitution. With this in mind, it is perhaps wiser to concur with
Anthony King, who observes: “Devolution, it has frequently been pointed out, is a
process, not an event, and in the case of devolution in the United Kingdom there is
every reason to suppose the process will be never ending.”130
127
For example, Scottish finance secretary John Sweeney estimated a budget reduction for Scotland of £1.3
billion following the comprehensive spending review announced by the Westminster government on the
October 20, 2010. See http://www.scotland.gov.uk/News/Releases/2010/10/20083324.
128
129
Rodney Brazier, Constitutional Reform: Reshaping the British Political System 121 (2008).
130
Anthony King, The British Constitution 212 (2007) .

The Multifaceted Constitutional Dynamics of U.K. Devolution: Peter Leyland

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The Multifaceted Constitutional Dynamics of U.K. Devolution: Peter Leyland

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* Professor of Public Law, London Metropolitan University. Email: p.leyland@londonmet.ac.uk

I•CON (2011), Vol. 9 No. 1, 251–273 doi: 10.1093/icon/mor021

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continuing importance of Westminster legislation in the devolved areas of the United

2. Comparing devolution to federalism

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to be implemented by a cadre of civil servants schooled in the traditions of the U.K.

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3. Reviewing the national dynamics

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expenditure are made according to a ratio calculated on relative population size. In

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government in power at Westminster—for example, if different political parties had

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3.3. Northern Ireland

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4. Devolution and legislation

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