Learning Outcomes
After studying this article, you will be able to explain the legal status, powers, and functions of the devolved governments in Scotland, Wales, and Northern Ireland. You will be able to distinguish between reserved and devolved matters, describe the legislative competence of devolved legislatures, and understand the constitutional relationship between devolved institutions and the UK Parliament. You will also be able to apply these principles to SQE1-style scenarios.
SQE1 Syllabus
For SQE1, you are required to understand the constitutional status and powers of devolved institutions in the UK. In your revision, focus on:
- the creation and legal basis of devolved governments in Scotland, Wales, and Northern Ireland
- the distinction between reserved and devolved matters
- the legislative competence of devolved legislatures
- the relationship between devolved institutions and the UK Parliament, including the Sewel Convention
- the impact of UK parliamentary sovereignty on devolution
- the role of the courts in resolving devolution disputes
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.
- What is the difference between a reserved matter and a devolved matter in the context of UK devolution?
- Can the Scottish Parliament amend an Act of the UK Parliament? If so, under what conditions?
- What is the Sewel Convention, and is it legally enforceable?
- Who decides whether a devolved legislature has acted within its legislative competence?
Introduction
Devolution in the United Kingdom refers to the statutory granting of powers from the UK Parliament to the governments and legislatures of Scotland, Wales, and Northern Ireland. This arrangement creates a multi-layered constitutional structure, where devolved institutions exercise authority over specific policy areas, while the UK Parliament retains ultimate sovereignty. Understanding the scope and limits of devolved powers, and how they interact with reserved matters, is essential for SQE1.
The Legal Basis of Devolution
The devolved institutions were created by Acts of the UK Parliament:
- The Scotland Act 1998 established the Scottish Parliament and Government.
- The Government of Wales Acts 1998 and 2006 created and expanded the powers of the Senedd Cymru (Welsh Parliament) and Welsh Government.
- The Northern Ireland Act 1998 set up the Northern Ireland Assembly and Executive, reflecting the Good Friday Agreement.
These statutes define the structure, powers, and limits of each devolved institution.
Key Term: devolved institution A body, such as the Scottish Parliament, Senedd Cymru, or Northern Ireland Assembly, established by statute and granted powers to legislate and govern in certain areas.
Reserved and Devolved Matters
A central feature of devolution is the division of powers between the UK Parliament and devolved institutions.
Key Term: reserved matter An area of law or policy that remains under the exclusive authority of the UK Parliament and cannot be legislated on by devolved legislatures.
Key Term: devolved matter An area of law or policy for which legislative and executive authority has been transferred to a devolved institution.
Scotland and Wales: Reserved Powers Model
- In Scotland and Wales, the reserved powers model applies. The devolved legislature can legislate on any matter not explicitly reserved to Westminster.
- Reserved matters include: the constitution, foreign affairs, defence, immigration, and certain aspects of economic policy.
- All other areas—such as health, education, housing, and local government—are devolved.
Northern Ireland: Excepted, Reserved, and Transferred Matters
- Northern Ireland operates a three-way division:
- Excepted matters: Always retained by Westminster (e.g., foreign affairs, defence).
- Reserved matters: May be transferred to the Assembly in future (e.g., policing, criminal justice).
- Transferred matters: Devolved to the Assembly (e.g., health, education, agriculture).
Legislative Competence of Devolved Legislatures
Devolved legislatures may pass primary legislation—Acts of the Scottish Parliament, Acts of the Senedd, and Acts of the Northern Ireland Assembly—within their legislative competence.
Key Term: legislative competence The legal authority of a devolved legislature to make laws in specified areas, as defined by the relevant devolution statute.
Limits on Legislative Competence
Devolved legislatures cannot:
- legislate on reserved (or excepted) matters
- legislate contrary to the European Convention on Human Rights (ECHR)
- (prior to Brexit) legislate contrary to EU law
- remove certain protected functions (e.g., the Lord Advocate’s role in Scotland)
If a devolved Act exceeds competence, it is not law.
Who Decides Competence?
Ultimately, the courts—especially the UK Supreme Court—determine whether a devolved legislature has acted within its competence. Law officers (such as the Attorney General) may refer bills to the Supreme Court before Royal Assent.
Worked Example 1.1
A bill passed by the Scottish Parliament amends a UK Act relating to education. Is this within the Scottish Parliament’s competence?
Answer: Yes, provided the subject matter (education) is devolved and not reserved. The Scottish Parliament can amend UK Acts on devolved matters.
The Sewel Convention
The Sewel Convention is a constitutional practice stating that the UK Parliament will not normally legislate on devolved matters without the consent of the relevant devolved legislature.
Key Term: Sewel Convention A political convention that Westminster will not normally legislate on devolved matters without the consent of the devolved legislature.
- The Sewel Convention is recognized in statute (e.g., Scotland Act 1998, s.28(8)), but the Supreme Court has confirmed it is not legally enforceable.
- Legislative consent motions (LCMs) are used to give formal consent.
Worked Example 1.2
Parliament passes an Act affecting health policy in Scotland without the consent of the Scottish Parliament. Is this Act valid?
Answer: Yes. The Sewel Convention is a political, not legal, constraint. The UK Parliament remains sovereign and can legislate on devolved matters, even without consent.
Relationship Between Devolved Institutions and UK Parliament
- The UK Parliament is legally sovereign and can legislate on any matter, including devolved matters.
- Devolved legislatures derive their powers from UK statutes and are not sovereign.
- The courts enforce the limits of devolved competence, but not political conventions like Sewel.
Exam Warning
The Sewel Convention is not legally binding. Even if a devolved legislature refuses consent, the UK Parliament can still legislate on devolved matters. Do not confuse political conventions with legal limits.
Judicial Resolution of Devolution Disputes
Disputes about whether a devolved legislature has exceeded its powers can be referred to the Supreme Court by law officers or arise in litigation. The Supreme Court decides whether a provision is within competence by examining its purpose and effect.
Worked Example 1.3
The Welsh Parliament passes an Act on tourism. Tourism is not listed as a reserved matter. Can this Act be challenged as outside competence?
Answer: No. Under the reserved powers model, the Senedd can legislate on any matter not reserved. If tourism is not reserved, it is within competence.
Impact of Brexit on Devolution
- Many powers previously exercised at EU level (e.g., agriculture, fisheries) have returned to the UK.
- The UK Internal Market Act 2020 ensures free trade within the UK but has been controversial, with devolved governments arguing it restricts their autonomy.
- The courts continue to resolve disputes about the boundaries of devolved powers.
Key Point Checklist
This article has covered the following key knowledge points:
- The devolved governments of Scotland, Wales, and Northern Ireland are established by UK statutes and exercise powers within defined areas.
- Reserved matters remain under the control of the UK Parliament; devolved matters are legislated on by devolved institutions.
- Legislative competence is defined by statute and enforced by the courts; Acts outside competence are not law.
- The Sewel Convention is a political convention, not a legal rule; it does not prevent Westminster from legislating on devolved matters.
- The UK Parliament remains sovereign and can legislate on any matter, but political and practical constraints apply.
- Brexit has affected the scope of devolved powers and led to new legal and political disputes.
Key Terms and Concepts
- devolved institution
- reserved matter
- devolved matter
- legislative competence
- Sewel Convention
