Status of devolved institutions - Relationship between devolved institutions and Westminster

Learning Outcomes

By the end of this article, you will be able to explain the legal status of the devolved institutions in Scotland, Wales, and Northern Ireland, describe the relationship between these bodies and the UK Parliament, and apply the principles of legislative competence, the Sewel Convention, and parliamentary sovereignty to SQE1-style scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the constitutional status of devolved institutions and their relationship with Westminster. In your revision, focus on:

• the legal basis and powers of the devolved legislatures and governments in Scotland, Wales, and Northern Ireland
• the concept of legislative competence and the limits on devolved law-making
• the continuing sovereignty of the UK Parliament over devolved matters
• the role and legal effect of the Sewel Convention
• how disputes over devolved competence are resolved, including the role of the UK Supreme Court
• the impact of major constitutional events (such as Brexit) on the devolution settlement

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.

1. What is meant by "legislative competence" in the context of devolution?
2. Can the UK Parliament legislate on devolved matters without the consent of the devolved legislatures?
3. What is the Sewel Convention, and is it legally enforceable?
4. Who decides whether a devolved legislature has acted within its legislative competence?
5. How did Brexit affect the division of powers between Westminster and the devolved institutions?

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 legislatures and governments in Scotland, Wales, and Northern Ireland. This arrangement creates a complex relationship between the devolved institutions and Westminster, balancing regional autonomy with the continuing sovereignty of the UK Parliament. For SQE1, you must understand the legal status of the devolved bodies, the limits of their powers, and the mechanisms for resolving disputes over competence.

The Legal Basis of Devolution

Devolution in the UK is established by Acts of Parliament:

• Scotland Act 1998 (as amended)
• Government of Wales Act 2006 (as amended)
• Northern Ireland Act 1998

These statutes set out the powers and structures of the devolved legislatures and governments. Each settlement is different, reflecting the history and needs of each nation.

Key Term: devolved institution A body (legislature or government) in Scotland, Wales, or Northern Ireland with powers transferred from the UK Parliament by statute.

Key Term: legislative competence The legal authority of a devolved legislature to make laws on particular subjects within its territorial scope, as defined by the relevant devolution statute.

Reserved, Devolved, and Excepted Matters

The division of powers is based on the concept of reserved (and, in Northern Ireland, excepted) matters:

• Reserved matters: Areas where only Westminster can legislate (e.g., defence, foreign affairs, immigration, most aspects of the constitution).
• Devolved matters: Areas where the devolved legislatures can make law (e.g., health, education, local government).
• Excepted matters (Northern Ireland only): Areas permanently outside devolved competence (e.g., the Crown, international relations).

Key Term: reserved matters Subjects on which only the UK Parliament can legislate, as specified in the devolution statutes.

Key Term: excepted matters In Northern Ireland, subjects permanently outside the Assembly's competence, listed in the Northern Ireland Act 1998.

The Scottish and Welsh models use a "reserved powers" approach: everything not reserved is devolved. Northern Ireland uses a combination of reserved and excepted matters.

Limits on Legislative Competence

Devolved legislatures cannot make laws:

• on reserved or excepted matters
• that are incompatible with the European Convention on Human Rights (ECHR)
• that (until Brexit) were incompatible with EU law
• that have extraterritorial effect outside their nation (with limited exceptions)
• that modify certain protected statutes (e.g., the Human Rights Act 1998)

If a devolved Act exceeds competence, it is "not law" and can be struck down.

Key Term: ultra vires Acting beyond the legal powers granted by law. A devolved legislature acts ultra vires if it legislates outside its competence.

The Continuing Sovereignty of Westminster

Despite devolution, the UK Parliament remains legally sovereign. It can legislate on any matter, including devolved matters, for any part of the UK. This is confirmed in the devolution statutes (e.g., Scotland Act 1998, s 28(7)).

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.

However, political conventions and practical considerations usually mean Westminster does not legislate on devolved matters without consent.

The Sewel Convention

The Sewel Convention is a constitutional convention that Westminster "will not normally legislate with regard to devolved matters without the consent" of the relevant devolved legislature. It is recognised in statute (e.g., Scotland Act 1998, s 28(8)), but is not legally enforceable by the courts.

Key Term: Sewel Convention The convention that the UK Parliament will not normally legislate on devolved matters without the consent of the devolved legislature.

Key Term: legislative consent motion (LCM) A formal motion passed by a devolved legislature giving consent for Westminster to legislate on devolved matters.

The Sewel Convention is a political constraint, not a legal one. The Supreme Court has confirmed that even where the convention is recognised in statute, it does not create a legally enforceable obligation.

Worked Example 1.1

Scenario: The UK Parliament wishes to pass a law on education (a devolved matter in Scotland). The Scottish Parliament refuses to pass a legislative consent motion.

Question: Can Westminster still pass the law for Scotland?

Answer: Yes. Legally, Westminster remains sovereign and can legislate on any matter, including devolved ones, even without consent. However, this may cause political controversy and strain intergovernmental relations.

The Role of the UK Supreme Court

Disputes over whether a devolved legislature has acted within its competence are resolved by the UK Supreme Court. The law officers (e.g., the Advocate General, Attorney General, or Counsel General) can refer a bill to the Supreme Court before Royal Assent, or individuals can challenge Acts after enactment.

Key Term: reference to the Supreme Court A procedure allowing law officers to ask the Supreme Court to rule on whether a devolved bill is within legislative competence before it becomes law.

The Supreme Court's decision is final. If a provision is outside competence, it is "not law" and has no legal effect.

Worked Example 1.2

Scenario: The Welsh Parliament passes an Act on a subject not listed as reserved. The UK Government believes the Act relates to a reserved matter.

Question: Who decides if the Act is within competence?

Answer: The UK Supreme Court decides, either by reference from a law officer before Royal Assent or by judicial review after enactment.

The Impact of Brexit

Brexit has affected the devolution settlement in several ways:

• Many powers previously exercised at EU level (e.g., agriculture, fisheries) have returned to the UK. There is debate over whether these should be devolved or retained centrally.
• The UK Internal Market Act 2020 establishes UK-wide rules to ensure free trade within the UK, limiting the ability of devolved governments to set divergent standards.
• Disputes have arisen over the allocation of repatriated powers and the operation of common frameworks.

Worked Example 1.3

Scenario: After Brexit, the Scottish Parliament wants to set higher food safety standards than England. The UK Internal Market Act 2020 requires mutual recognition of goods.

Question: Can Scotland ban the sale of goods lawfully produced in England but not meeting Scottish standards?

Answer: Generally, no. The Internal Market Act requires that goods lawfully produced in one part of the UK can be sold in any other part, limiting the devolved government's ability to enforce higher standards on incoming goods.

Fiscal Devolution and Funding

Devolved governments have varying powers over taxation and spending. Scotland has the most extensive fiscal powers, including control over income tax rates and certain other taxes. Wales and Northern Ireland have more limited fiscal autonomy.

Funding for devolved governments is determined by the Barnett Formula, which allocates block grants from the UK Treasury based on spending in England and population shares. The formula is often criticised for not reflecting differing needs.

Key Term: Barnett Formula The mechanism used by the UK Treasury to calculate the block grants given to devolved administrations, based on changes in public spending in England.

Intergovernmental Relations and Dispute Resolution

Cooperation between Westminster and the devolved governments is managed through mechanisms such as the Joint Ministerial Committee (JMC). Disputes are usually resolved politically, not legally.

Key Term: Joint Ministerial Committee (JMC) A forum for ministers from the UK and devolved governments to discuss and coordinate policy on shared interests.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The devolved institutions in Scotland, Wales, and Northern Ireland are established by Acts of Parliament and have powers defined by statute.
• Legislative competence limits the subjects on which devolved legislatures can make law; reserved and excepted matters remain with Westminster.
• The UK Parliament remains sovereign and can legislate on any matter, including devolved ones.
• The Sewel Convention is a political convention that Westminster will not normally legislate on devolved matters without consent, but it is not legally enforceable.
• The UK Supreme Court resolves disputes over legislative competence.
• Brexit has affected the allocation of powers and created new tensions between Westminster and the devolved governments.
• Funding for devolved governments is determined by the Barnett Formula, and fiscal powers vary between nations.

Key Terms and Concepts

• devolved institution
• legislative competence
• reserved matters
• excepted matters
• ultra vires
• parliamentary sovereignty
• Sewel Convention
• legislative consent motion (LCM)
• reference to the Supreme Court
• Barnett Formula
• Joint Ministerial Committee (JMC)