Constitutional law.

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CONSTITUTIONAL LAW

Christine Byres

LLB

CONTENTS

HEADINGS                                                                            PAGE NO.

 Introduction                                                                        3

 A little bit of History                                                                4

 Scottish Bill                                                                        6

 Research Programme                                                                7

 The Scottish Act 1998                                                                8

 Paper Clippings                                                                            10  

 Conclusion                                                                                  11

 Bibliography                                                                          12

 Appendix A – Section 98, Schedule 6 of 1998 Scotland Act                          13

 Appendix B – Results of Referendum in Scotland in 1997                               14

 Appendix C – Abstracts from the Scottish Bill                                          19

 Appendix D – Scotland Act 1998 – Schedule 5 Reserved Matters          20


CONSTITUTIONAL LAW

Devolution has been unqualified success.”  With reference to the Scotland Act 1998, the legislation passed by Scottish Parliament and governance in Scotland since devolution, analyse this statement.

Introduction

Royal Commission defined Devolution as “the delegation of central government powers without the relinquishment of sovereighty.”1

In recent years we have seen some serious changes in the governance of Scotland. It was on the 1 May 1997 that the Labour government committed to a constitutional programme.  It was one of the Labour party’s declarations in 1997 that it was important to modernise the constitution.  By the end of that summer, they produced a White Paper on devolution to Scotland and had made legislative provision for referendums to be held in Scotland and Wales on whether devolution should take place. The referendums were held on 11 September and, with positive results in both apart from the fact it only just made it in Wales.  The government brought forward the legislation that provided an establishment of a Parliament in Scotland and a National Assembly in Wales.

However Scotland did not require legislative devolution until the Scottish Parliament came into force in 1999.  As for Wales and Northern Ireland they have their regional assemblies.

Yet we question devolution, why?

Well the reason is that devolution does not necessarily makes the government of Scotland easier for the unfamiliar to understand, although it has the best intentions, devolution has presented those who live, work and do business in Scotland to deal with another government as well as Westminster and Whitehall, and the institutions of the European Union.  So devolution has not really worked in Scotland or has it?

Lets review the facts!

Footnote

1.  p34 Convery. J, Constitutional. Law Basics. W. Green. Edinburgh 1998.


A little bit of History

Scotland remained an independent land.  It was not until 1707, things changed.

Since then, there has been legal devolution to Scotland.  This was when the union of governments and Parliaments occurred which in turn formed into “Great Britain”.  This was set out in the Act of Union 1907.

It was under Chairmanship, Lord Kilbrandon that the Royal Commission on the constitution was set up, it was set up in response to a “surge in Nationalist support in Scotland and Wales in the late 1960’s.”1 

There was great pressure in the late 1960’s for devolution in Scotland.

“The circumstances of the 1970s were never particularly favourable to devolution. The proposals did not flow from a rational assessment of the deficiencies of the constitutional structure of the United Kingdom; rather, they were an expedient, intended to snuff out rising Nationalist support.”2

The issue caused a lot of problems and disputes.

Most of the commissioners proposed initiatives of legislative and executive devolution in Scotland; there was only a minority that wished this in Wales. It was reported in 1973.  

Footnote

1.  p34 Convery. J, Constitutional. Law Basics. W. Green. Edinburgh 1998.

2.  http://www.saltireguide.co.uk/secure/sal1-1.htm.   


The government in 1975 introduced a white paper outlining some proposals.  “Our Changing Democracy: Devolution to Scotland and Wales.”1 

This white paper then led the introduction of a bill for Scotland and Wales in the House of Commons in 1976 but it was withdrawn due to the fact it was badly drafted.  However two separate bills for Scotland and Wales were laid out before the house of Common.  Each of them was amended and both passed in 1978.

“The main features of the Scotland Act 1978 were as follows:

  • Given a positive vote in a referendum in Scotland, a Scottish Assembly and Scottish Executive would be established. This would be without prejudice to the continuing sovereignty of the Westminster Parliament over the whole of the United Kingdom.
  • The Scottish Assembly would have legislative competence over specific "devolved matters". Anything not specifically devolved would remain the province of Westminster; and even within devolved areas certain subjects remained at the centre.
  • The Secretary of State for Scotland would remain a Cabinet Minister within the central government of the United Kingdom. He would have power to reserve for Westminster’s consideration, any bill passed by the Scottish Assembly, which in his view strayed into non-devolved matters and which was not in the public interest; and Westminster could by resolution block the submission of the bill for the Royal Assent. The Secretary of State would also have power to veto actions of the Scottish Executive affecting non-devolved matters; and to refer Scottish bills to the Judicial Committee of the Privy Council for a decision on whether it was within the competence of the Assembly.
  • Acts of the Scottish Assembly would remain open to legal challenge after enactment, with final appeal to the Privy Council.”2 
Join now!

Footnote

1.   p34 Convery. J, Constitutional. Law Basics. W. Green. Edinburgh 1998.

2.  http://www.saltireguide.co.uk/secure/sal1-1.htm.


There were a large number of voters in Scotland and Northern Ireland, they voted to have their respective forms of devolution.  Their vote by the public proved crucial in 1979.  The Welsh hardly voted.  As for the English voters they did not at the time have the opportunity to decide whether they wished to have a form of devolution.1 

The result of the 1979 referendum had nothing to do with ...

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