'The devolution of power to the Scottish Parliament and the National Assembly for Waleshas removed both legal and political power from London.'Evaluate this statement.

Public Law Essay Victor Sim

Devolution Essay

'The devolution of power to the Scottish Parliament and the National Assembly for Wales has removed both legal and political power from London.'

Evaluate this statement.

Introduction

Devolution defined in 1973 by the Royal Commission on the Constitution as ‘the delegation of central government powers without the relinquishment of sovereignty.’ There has been a dispersion of opinions that whether Westminster in London has had its legal and political sovereignty relinquishd since the devolution of powers to Scotland and Wales in 1998. On the onset, this essay will provide a glance of the historical background of the birth of the Scottish Parliament and the National Assembly. It is necessary to acquire a vision of the political reason of devolution in order to gain a better understanding of the question addressed. It will then examine the content of the Scotland Act 1998 and the Government of Wales Act 1998, and accordingly their legal effect, scope and limit. Finally, political reality will be discussed and this will lead to the conclusion that devolution indeed shrinks both the powers that has long been centralized in London.

Historical background

In 1707 the Act of Union abolished the separate Parliaments for Scotland and England, and created a single Parliament at Westminster for the whole of the United Kingdom.

In 1979 a Referendum was held on proposals by the then Government to establish a Scottish Assembly, but although a small majority voted in favour the proposals did not obtain the support of 40% of the electorate, which had been set as a threshold to hit before they could be implemented.

In 1989 the Scottish Constitutional Convention was established, consisting of representatives of civic Scotland and some of the political parties, to draw up a detailed blueprint for devolution including proposals for a directly elected Scottish Parliament with wide legislative powers. The SCC's Report in 1995 formed the basis of further proposals which were brought forward by the UK Government in 1997.

These proposals received overwhelming support in a Referendum on September 11, 1997, with 74% voting in favour of a Scottish Parliament and 63% voting for the Parliament to have powers to vary the basic rate of income tax.

Following the passage of the Scotland Act 1998, the Scottish Executive and Scottish Parliament were officially convened on July 1, 1999 - a date which marks the transfer of powers in devolved matters, previously exercised by the Secretary of State for Scotland and other UK Ministers, to the Scottish Ministers.

Scotland- Scotland Act 1998

Devolution is not intended to affect the unity of the state or the form of government in the rest of the United Kingdom. The provisions of the Scotland Act, therefore, contain safeguards to ensure that the Scottish Parliament does not abuse its powers. The first is the supremacy of Westminster, reaffirmed in section 28 (7); together with the provisions limiting the legislative powers to domestic matters, to prevent, in virtue of section 35 (I) (b), the Scottish Parliament from legislating on such domestic matters so as to influence the administration on matters reserved to Westminster in a manner harmful to public interest. The second consists of the limitation of the revenue-raising powers of the parliament to a variation of not more than 3 per cent in the basic rate of income tax from that determined for the rest of the United Kingdom by Westminster. The third is the appointment of the Scottish First Minister, which through Queen` s Royal Assent, it is effectively a Prime Minister decision. The details will be examined next.

Legislative competence and Legal Supremacy

The legislative competence of the Scottish Parliament is laid down in Part I of the Act. The Scottish Parliament has a broad power to make laws for Scotland, to be known as Acts of the Scottish Parliament, but this power is subject to limitations. Thus, it does not extend to matters reserved to Westminster.

If the Scottish parliament were to go outside its competence by legislating on a reserved matter, the provision in question would not be law. Other limits are that a Scottish Act may not affect the law of any country ...

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Legislative competence and Legal Supremacy

The Judicial Committee of the Privy Council may be asked to decide whether a Bill is within competence to ensure that the Queen is not offered conflicting advice between the Presiding Officer of the Scottish Parliament and the Prime Minister of the British government. In addition to these procedures, the Scotland Act provides for the decision of devolution issues. Such an issue arises when, in proceedings in a court or tribunal, a legislative or executive decision is challenged on the ground that is not within devolved powers, question as to its compatibility with the ECHR.

In respect to supremacy of Westminster, section 28 (7) declares that `this section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland`. This subsection lays out the central constitutional principle underlying devolution. It rejects both separatism, under which the Parliament of the United Kingdom would no longer have power to legislate for Scotland at all; and federalism under which the Parliament of the United Kingdom would have power to legislate for Scotland only in certain defined areas, other areas becoming the entire responsibility of the Scottish Parliament. The Act thus, in theory at least, preserves parliamentary supremacy, and Westminster can, if it wishes, continue to legislate on matters devolved to Scotland.

Furthermore, the doctrine of parliamentary sovereignty may suggest that an Act of Parliament is valid even if it contravenes the fundamental law of Acts of Union 1707. In MacCormick` s case, Lord President Cooper said that `the principle of the unlimited sovereignty of Parliament is a distinctively English Principle which has no counterpart in Scottish constitution law. ` But yet, the court decided that there is no jurisdiction for domestic Courts of either Scotland or England to entertain the matter. Although the case did not give definite answer to the question whether Parliament` s powers are limited by the Acts of Union, it is suggested that the new United Kingdom Parliament created in 1707 had succeeded to the sovereignty of its English predecessor and was unlimited in law by the terms of the Act of Union.

Finance

Finance is dealt with Part III and IV of the Act. The bulk of the income of the Scottish Administration is derived from a block grant made from Westminster. This is calculated by Barnett formula which produces a sum that is treated as Scotland’s share of public expenditure. Within that total, the Scottish Administration may set its own priorities for expenditure on devolved matters, but it may not pass on the cost of doing so to UK government. An early use of this freedom was the Scottish decision not to follow the policy on payment of tuition fees by university students that applies elsewhere in the UK.

The Scottish authorities have power to increase or reduce the basic rate of income tax paid by 3p per £, a power equivalent to an annual power to raise or forgo some £450 million. Moreover, since the Parliament will be responsible for the financing of local authorities, it will have the power to secure revenue for itself by withholding revenue-support grant from local authorities.

However, the tax-varying power is in fact minimal. It only gives the Scottish Parliament control over £450 million out of a total Scottish Office budget of £14.6 billion. Thus, for practical purposes, the Scottish Parliament will be still dependent on Westminster for its financing. It is the financial arrangements which will largely determine the degree of autonomy enjoyed by the devolved administrations; the financial settlement, therefore, will exert a dominant influence on whether the aims of devolution are sustained or frustrated. All in all, since finance is the spinal cord of devolution, its financial dependency would significantly undermine the Scottish political power over the United Kingdom.

First Minister appointed by Royal Assent

Moreover, there is another powerful device which enables Westminster to extend its controlling power to Scottish Parliament. The First Minister is appointed by the Queen after having nominated by the Parliament. Through the Royal Assent advised by the Prime Minster, the appointment is essentially a Parliament` s decision.

Also, the First Minister and other ministers must be MSPs and the nomination of the other ministers must be approved by the Parliament before their formal appointment. They must resign if the Parliament resolves that the Executive no longer enjoys the confidence of the Parliament.

The executive is thereby accountable to the Parliament, which may scrutinize acts of the executive and the civil servants who staff the Scottish Administration.

Wales- the Government of Wales Act 1998

The Government of Wales Act differs fundamentally from the Scotland Act in that it proposes a novel form of executive devolution, one hitherto untried in the United Kingdom. Wales has only received an executive devolution with very restricted legal competence.

Legislative Competence (Part I)

By contrast with the Scottish Parliament, the National Assembly for Wales lacks a general power to make laws for Wales. The legislature for Wales is still the Westminster Parliament. But the Assembly exercises a secondary role in legislation, since the Assembly has had transferred to it many powers of making delegated legislation previously exercised by the Secretary of State of Wales, such as agriculture and fisheries, economic development, education and training, health, housing, industry, social services and transport, etc.

Subordinate legislation made by the Assembly is void if it goes outside the Assembly’s competence, eg if it is inconsistent with Westminster legislation, with EC law or with ECHR. Devolution issues may arise in relation to Wales as they can in relation to Scotland; procedures exist for enabling them to be decided ultimately by the Judicial Committee of the Privy Council.

Finance (Part IV)

As with Scotland, the Assembly is primarily funded by an annual block grant from Westminster calculated by the Barnett formula and it can set its own expenditure priorities; unlike the Scottish Parliament, the Assembly may not vary the basic rate of income tax. Since it is entirely financially dependent on Westminster, Wales has very limited political influence over the United Kingdom.

Executive Committee

By Part II of the Act, the Executive Committee comprises the Assembly First Secretary and the chairs of the subject committees to provide overall direction to the Assembly. The Committee acts as a Cabinet; although it meets privately, it minutes are published. The First Secretary is accountable to the Assembly for the exercise of functions by the Executive Committee and is regularly questioned by the Assembly. Draft subordinate legislation is considered by committees of the Assembly before the Assembly’s power of approving the legislation is exercised.

Political Reality- Wales

Executive devolution may appear at first sight as merely a weaker variant of legislative devolution. The Welsh Assembly will have no power to pass primary legislation, but only secondary legislation, responsibility for primary legislation remaining with Westminster. However, horizontal executive devolution is not so much a weaker form of devolution than legislative devolution- devolution of a vertical type, but a wholly different kind of species.

Legislative devolution involves a transfer of powers; whereas executive devolution involves a division of powers. For instances, under section 31 of the Government of Wales Act, the Secretary of State is required to consult with the Assembly on the government` s programme, `as appears to him to be appropriate`. But there is no requirement to consult on every bill. The Secretary of State may refuse to do if he `considers that there are considerations relating to the bill which make it inappropriate for him to do so.

Moreover, the Secretary of State might well belong to a different party from that of the majority in the Assembly. Under those circumstances, there might be two contradictory voices speaking for Wales. If there is a conflict, it would prove difficult for the Assembly to gain influence over government legislation, but equally difficult for the government to enforces its policies for Wales over the head of a politically hostile National Assembly.

Although the formal role of the Assembly is to carry out executive functions formerly entrusted to the Secretary of State for Wales, the Assembly, like the Scottish Parliament, is likely to play a more important role of political representation that its functions suggest.

Political Reality- Scotland

Constitutionally, the Scottish Parliament will clearly be subordinate. Politically, however, it will be anything but subordinate. For the Scotland Act creates a new locus of political power. Its most important power is that of representing the people of Scotland. Although the Parliament’s powers are limited in law, its political significance within Scotland is great, enabling the Scottish people to be represented in a forum that has resonances of Scotland’s Parliament before 1707. Thus, it provides a means within Scotland for reforming Scottish law.

The First Minister in Scotland will be seen as an executant of their separate political will, backed by a popular majority in Scotland. It will be the First Minister who will claim the right to speak for Scotland, and claim that he or she has more right to do so than Westminster MPs or the Secretary of State who party unable to command a majority in Scotland.

The Westminster Parliament retains power to legislate for Scotland and in law it may override decisions taken in Edinburgh on devolved matters, but to do so would frustrate the purpose of devolution. A convention already exists that Westminster should not legislate on a devolved matter without the prior consent of the Scottish Parliament. It will thus not be easy to bring into play the constitutional restraints in the Scotland Act.

Conclusion

As for Wales, Westminster has evidently retained its legal power. London has delegated legal competence in order to facilitate its executory effectiveness and efficiency in Wales. In terms of political power, there is an obvious imbalance between England and Wales.Due to lesser political conflict and nationhood tension, London could recapture its delegated legal and political powers without much difficulty. But to do so, this would probably be at the cost of considerable political disaffection and loss of support. In practice, therefore, Westminster will find it extremely difficult to exercise its much-vaunted supremacy.

As for Scotland, Westminster still theoretically retains its supremacy. However, it is in constitutional theory alone that full legislative power remains with Westminster. It is in constitutional theory alone that the supremacy of Parliament is preserved.For power devolved, far from being power retained, will be power transferred. Once powers have been devolved, it may be politically impractical for the central legislature and executive to attempt to regain or assert authority over the transferred matters, even if in terms of strict constitutional law it would be permissible for it to do that. Thus the relationship between Westminster and Edinburgh will be quasi-federal in normal times and unitary only in crisis times such as war or economic crisis. For the formal assertion of parliamentary supremacy will become empty when it is no longer accompanied by a real political supremacy.

Bibliography:

An introduction to constitution law, Eric Barendt

Constitution and Administrative Law, Bradley and Ewing

Devolution in the United Kingdom, Vernon Bogdanor

Studies in Constitutional Law, Munro

British Government and the Constitution, Collin Turpin