Public Law (Devolution)

Q. Discuss whether a federal system would be much better than the current devolution arrangements
for the United Kingdom.

Ans. In order to run a country, different methods can be opted for the division or distribution of power
within its territories. This division, to some extent, depends upon the constitution of the state. For
countries with codified constitution e.g. Pakistan, USA etc. Federal systems would be preferred whereas
in countries with an unwritten constitution e.g. UK, devolution would be adopted. In federalism powers
are pre handed down via a written constitution which clarifies the authority the national government
has as well as the ones which the local, provincial or regional bodies have.

Federalism according to Andrew Scott is when the powers are divided between the national government
at one hand and a number of constituent regions which are politically distinct on the other. In contrast
to this, Devolution is ‘the delegation of central government powers without the relinquishment of
sovereignty’. As stated in para no.1, UK has a system of devolution with the Westminster Parliament
being the sovereign lawmaker within the English legal system whereas powers are devolved to regional
Parliaments and Governments to legislate and execute accordingly. This system of devolution has been
established by a series of Acts known as ‘Devolution Acts’; Scotland Act 1998, Government of Wales Act
1998 and Northern Ireland Assembly Act 1998.

These devolution Acts have set the parameters within which each devolved state can exercise its
lawmaking and execution of the said laws. However, there are certain matters which are out of reach for
the regional Parliaments e.g. matters of national policy and security. Moreover, devolution in each of
the devolved state; Scotland, Northern Ireland and Wales, operates differently and this would be
analyzed now.

Starting with the Scottish devolution, attempt of achieving devolution in Scotland were first made in
1978 by the Labour government who successfully managed to pass the Scotland Act 1978 in UK
parliament. However it was not before 1998 that devolution was achieved primarily because the labour
government was not as strong in 1978 as it got in 1998. The motto of the labour party was to devolve
the powers to the states of UK to strengthen the Union therefore, when they were elected, they had to
fulfill the promises they had made.

Scotland Act 1998 devolved powers to Scottish Parliament and Scottish Government and was followed
by Scotland Act 2012 and Scotland Act 2016 which made changes to the original Act of 1998. And now
the aspects of devolution in Scotland are such that the Scottish Parliament and Government are
considered a permanent part of the constitution of UK and cannot be abolished without the say of the
people in Scotland. Moreover, although being sovereign, the Westminster Parliament cannot legislate
on matters which are devolved to the Scottish Parliament without the consent of the Scottish
Parliament. The 2016 Act increased the autonomy which the Scottish Parliament and Ministers had.
Moreover, the Scottish Parliament can now amend sections of the Scotland Act 1998 which concern the
operation of Scottish Parliament and Scottish Government in UK. The way the devolution works in
Scotland is that the Scottish Government is headed by the First Minister for Scotland instead of the
Scottish office which was a governmental department. Furthermore, Scotland has its own legal system
which works independently from the English legal system. Scotland Parliament and Government have
powers over a wide area, Scotland has powers over taxation, variation of taxation, local media/ culture,
healthcare and medical system, tourism, transport, fishery, local education etc. However, the matters
which are out of the reach of the Scottish Parliament and Government are matters which are reserved
for the UK parliament which primarily include matters of national concern e.g. defence policies,
economic matters, trade etc.

Coming to Northern Ireland, devolution here, took place via the Northern Assembly Act 1998. As stated
earlier, the way the devolution works in each of the devolved state is different and this can be seen by
the fact that unlike Scotland, Northern Ireland only has a handful of matters it has power upon.
Northern Ireland has powers over fishery policies, tourism, local environment, local culture, healthcare,
local transport etc. but it does not have the tax varying powers which the Scotland does, nor does it
have its own legal system. In January 2017, the governance of Northern Ireland broke down and
Northern Irish Assembly was not in business anymore. In this time, it was the UK parliament which was
passing acts for the working of Northern Ireland. However, devolution was restored via the Northern
Ireland Act 2019 which brought the Northern Irish Assembly back in action along with the Northern Irish
office which is headed by the Secretary of State for the Northern Ireland. After restoration, the Northern
Irish assembly has brought forward new legislations on new and different matters e.g. same sex
marriage and abortion.

The inconsistency in devolution can further be seen in Welsh Devolution which was brought in place by
the Government of Wales Act 1998. This Act created a new National Assembly but was criticized as it
was initially unable to create a clearly separate Welsh government. Welsh Assembly has even fewer
powers than the Northern Ireland as it can only legislate on matters like preservation of Welsh language,
customs and traditions, culture etc. Other powers still lay with the UK parliament and the executive.

Having explained how devolution operates in each of the said states, one must highlight that even
though the powers to legislate have been given to the devolved states, these devolved parliaments are
second to the UK parliament as it is the UK parliament which passed the devolution Acts and brought
devolution in UK the way it is. Therefore, the doctrine of Parliamentary Sovereignty is in contact and
must be followed, Robinson v Secretary of State for Northern Ireland. Furthermore, these devolved
parliaments are looked at the same way as anybody authorized to carry out delegated legislation is as
they are open to judicial review, Whaley v Lord Watson of Invergowrie, With that been said, these
devolution acts are considered as constitutional statutes and can therefore cannot be repealed
impliedly, rather they can only be repealed ‘expressly’, Imperial Tobacco v HM Lord Advocate.

Moreover, although it has been established that the devolved Parliaments work independently of the
sovereign, there are some matters for which both, the UK Parliament and the devolved Parliaments
have to sit together for co-legislation. For this very reason, Joint Ministerial committees (JMCs) are
made. JMCs have to meet annually and consist of UK Prime Minister, deputy Prime Minister and the
respective Secretary of State and First Minister. The problem with the JMCs is that they do not meet
that often and this serves to be one of the reasons for the communication gap between the central and
regional governments in UK.
Coming to the issues revolving around the operation of devolution in UK, it has been established earlier
that devolution, in each state, operates differently. This was seen by the fact that the Scotland has more
devolved powers than Northern Ireland which in turn has more devolved powers than Wales.
Furthermore, Scotland has its own legal system unlike Northern Ireland and Wales and therefore is not
bound by the English Legal system. Talking about English, questions have been raised as to why England
lacks to have its own Parliament? Why isn’t there a devolved English Parliament? Also, a lot of MPs have
put forward the need for an ‘English question’ in the UK Parliament from which the MPs coming from
Scotland, Northern Ireland and Wales would be excluded. However, this would result in the MPs being
treated differently which would definitely give rise to political tensions.

Therefore, there is no doubt that the said system has many flaws and many would argue that UK should
adopt federalism. However, opting Federalism would not fix the problems rather it would worsen them
as setting up a new system is harder than fixing a problem in the system. Hence, the flaws in the current
system of devolution must be fixed by bringing each devolved state, Scotland, Wales and Northern
Ireland, on an equal footing and by devolving equal powers to a devolved English Parliament. This would
eliminate the flaws in the current system of devolution therefore, making it more workable.