Learning Outcomes
After reading this article, you will be able to explain the statutory basis and legal status of devolved institutions in the UK, identify the division of legislative powers between Westminster and devolved bodies, and apply the principles of devolution—including the Sewel Convention and the limits of devolved competence—to realistic SQE1-style scenarios.
SQE1 Syllabus
For SQE1, you are required to understand the legal status and operation of devolved institutions in the UK. Focus your revision on:
- the statutory basis for devolution in Scotland, Wales, and Northern Ireland
- the division of legislative and executive powers between Westminster and devolved bodies
- the legal and political significance of the Sewel Convention
- the limits of devolved competence and the role of the UK Parliament
- the effect of judicial review and statutory interpretation on devolved powers
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- Which Act of Parliament established the Scottish Parliament and what model of legislative competence does it use?
- What is the Sewel Convention and is it legally enforceable?
- Can the UK Parliament legislate on devolved matters without the consent of the devolved legislature?
- What is the legal effect if a devolved institution passes legislation outside its competence?
- How does Brexit affect the distribution of powers between Westminster and devolved governments?
Introduction
Devolution in the United Kingdom refers to the statutory transfer of certain legislative and executive powers from the UK Parliament at Westminster to new institutions in Scotland, Wales, and Northern Ireland. These devolved institutions operate within a framework set by Acts of Parliament, which define their powers and limits. While devolution grants significant autonomy, the UK Parliament remains legally sovereign. Understanding the legal status, statutory basis, and practical operation of devolution is essential for SQE1.
The Statutory Basis of Devolution
Devolution in the UK is underpinned by key Acts of Parliament. These statutes create the devolved legislatures and executives, set out their powers, and define the boundaries of devolved and reserved matters.
Key Term: devolution The statutory transfer of specified legislative and executive powers from the UK Parliament to new institutions in Scotland, Wales, and Northern Ireland.
Scotland
The Scotland Act 1998 established the Scottish Parliament and Scottish Government. It uses a "reserved powers" model: the Scottish Parliament may legislate on any matter not expressly reserved to Westminster. Reserved matters include the constitution, foreign affairs, and defence. The Scotland Act 2016 further entrenched the Scottish Parliament and Government as permanent parts of the UK’s constitutional arrangements, stating they cannot be abolished without a referendum in Scotland.
Key Term: reserved powers model A system where all matters are devolved except those specifically reserved to the UK Parliament.
Wales
Devolution in Wales began with the Government of Wales Act 1998, which created the National Assembly for Wales (now Senedd Cymru/Welsh Parliament). The Government of Wales Act 2006 and the Wales Act 2017 expanded the Assembly’s powers and adopted the reserved powers model, similar to Scotland. The Senedd can legislate on devolved matters such as health, education, and local government, unless a matter is reserved to Westminster.
Northern Ireland
The Northern Ireland Act 1998, implementing the Good Friday Agreement, established the Northern Ireland Assembly and Executive. Northern Ireland’s devolution settlement is unique, featuring a power-sharing executive and a three-way division of matters: "excepted" (always reserved to Westminster), "reserved" (may be devolved in future), and "transferred" (devolved).
Key Term: excepted matters Areas of law that remain permanently under the control of the UK Parliament in Northern Ireland (e.g., defence, foreign affairs).
The Principle of Parliamentary Sovereignty
Despite devolution, the UK Parliament remains legally sovereign. This means that, in law, Westminster can legislate on any matter, including devolved areas. However, political conventions and practical considerations often limit this power.
Key Term: parliamentary sovereignty The principle that Parliament can make or unmake any law, and no other body can override or set aside its legislation.
The Sewel Convention
A key constitutional convention in the operation of devolution is the Sewel Convention. It states that the UK Parliament "will not normally legislate with regard to devolved matters without the consent" of the relevant devolved legislature. This is usually given through a Legislative Consent Motion (LCM).
Key Term: Sewel Convention A political convention that Westminster will not normally legislate on devolved matters without the consent of the devolved legislature.
Key Term: Legislative Consent Motion (LCM) A formal motion by which a devolved legislature consents to Westminster legislating on devolved matters.
Although the Sewel Convention is recognised in statute (e.g., Scotland Act 1998 s.28(8)), the Supreme Court has confirmed it is not legally enforceable. It is a political, not a legal, constraint.
Legislative Competence and Limits
Each devolved legislature has defined legislative competence. An Act of a devolved parliament or assembly is not law if it exceeds its competence. Courts may review and strike down such legislation. The Supreme Court is the final arbiter on questions of competence.
Key Term: legislative competence The legal authority of a devolved legislature to make laws within the scope defined by statute.
If a devolved institution passes legislation outside its competence (for example, on a reserved or excepted matter, or contrary to the European Convention on Human Rights), that legislation is void.
Worked Example 1.1
A bill before the Scottish Parliament seeks to regulate immigration. Is this within the Parliament’s legislative competence?
Answer: No. Immigration is a reserved matter under the Scotland Act 1998. The Scottish Parliament cannot legislate on reserved matters, so such a bill would be outside its competence and void.
The Role of the UK Parliament
The UK Parliament retains the power to legislate on any matter, including devolved areas. However, by convention, it seeks the consent of the devolved legislature for devolved matters. In practice, Westminster has legislated without consent in exceptional cases (e.g., Brexit-related Acts), which has caused political controversy but is legally valid.
Worked Example 1.2
The UK Parliament passes an Act affecting health policy in Scotland without the consent of the Scottish Parliament. Is this Act legally valid?
Answer: Yes. The UK Parliament is legally sovereign and can legislate on devolved matters. The Sewel Convention is not legally enforceable, so lack of consent does not invalidate the Act.
Judicial Review and Statutory Interpretation
Courts play a key role in determining whether devolved legislation is within competence. The Supreme Court may be asked to rule on the validity of a bill before it receives Royal Assent, or on the validity of an Act after it is passed. Courts interpret the scope of devolved powers according to the relevant statutes.
Worked Example 1.3
The Welsh Parliament passes an Act regulating energy markets, an area reserved to Westminster. A business challenges the Act in court. What is the likely outcome?
Answer: The court will review whether the Act relates to a reserved matter. If it does, the Act is outside the Senedd’s competence and is void.
Brexit and Devolution
The UK's exit from the EU has affected devolution. Powers previously exercised at EU level in devolved areas have been repatriated. Disputes have arisen over whether these powers should return directly to devolved governments or be subject to UK-wide frameworks. The UK Internal Market Act 2020 aims to ensure trade across the UK, but devolved governments argue it limits their autonomy.
Key Term: UK Internal Market Act 2020 Legislation designed to ensure the free flow of goods and services across the UK, affecting devolved regulatory powers.
The Northern Ireland Protocol
The Northern Ireland Protocol, part of the Brexit Withdrawal Agreement, keeps Northern Ireland aligned with certain EU rules to avoid a hard border with the Republic of Ireland. This creates a unique legal position for Northern Ireland, with some divergence from the rest of the UK.
The Future of Devolution
Devolution remains a dynamic area, with ongoing debates about further powers, independence referendums, and the balance between regional autonomy and UK-wide coherence. While the statutory basis of devolution is clear, political and legal tensions continue to shape its operation.
Key Point Checklist
This article has covered the following key knowledge points:
- The statutory basis for devolution in Scotland, Wales, and Northern Ireland is set by Acts of Parliament.
- Devolved institutions have defined legislative competence; Acts outside this competence are void.
- The UK Parliament remains legally sovereign and can legislate on devolved matters.
- The Sewel Convention is a political convention, not legally enforceable.
- Courts, including the Supreme Court, determine the limits of devolved competence.
- Brexit has introduced new legal and political tensions in the operation of devolution.
Key Terms and Concepts
- devolution
- reserved powers model
- excepted matters
- parliamentary sovereignty
- Sewel Convention
- Legislative Consent Motion (LCM)
- legislative competence
- UK Internal Market Act 2020
