Devolution of Scotland and Wales

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Scotland

Background

The Acts of Union 1706 and 1707 led to the creation of the United Kingdom

The Scotland Act 1978 was an Act of the Parliament of the United Kingdom intended to establish a Scottish Assembly as a devolved legislature for Scotland.

  • At a referendum held in the following year, the Act failed to gain the necessary level of approval required by an amendment, and was never put into effect.

A referendum was later held in 1997 about Scottish devolution

1997 Referendum

The 1997 referendum asked two questions:

  • Do you agree that there should be a Scottish Parliament?
  • Do you agree that a Scottish parliament should have tax-varying powers?

Scotland voted by a large majority in favour of both

Scotland Act 1998

The following year, the Westminster Parliament enacted the Scotland Act 1998 providing for a Scottish Parliament and a ‘Scottish Executive’. Note: Scotland has enjoyed its own courts and legal system for centuries

On a similar basis to the Northern Ireland Act, the Scotland Act conveys ‘devolved’ legislative competences to the Parliament, whilst ‘reserving’ certain matters to the exclusive domain of Westminster

  • It was a “monumental piece of constitutional legislation” (Lord Walker)

Reserved matters (schedule 5) cannot be devolved i.e. only Westminster Parliament can legislate on reserved matters. Reserved matters include the constitution, foreign affairs, civil service, defence and the funding and registration of political parties

Devolved powers include education, health, agriculture, tourism, economic developing, and housing policy

S28 Scotland Act 1998 enables Scotland to make primary law. (i.e. Acts of Parliament). Section 29 states that the law the Scottish parliament does make:

  • Cannot be on any “country or territory other than Scotland”
  • Cannot be on any “reserved matters”
  • Cannot be “incompatible with any of the convention rights or with EU law”

S30 Scotland Act 1998 states that “schedule 5 (the reserved matters) shall have effect” unless the sovereign makes an order in counsel which is considered “necessary or expedient”

Imperial Tobacco v Lord Advocate [2012] states that statutes that emerge from devolved legislatures (i.e. the Scottish parliament) should be interpreted in the same way as statutes that emerge from the Westminster Parliament

Scottish Independence?

The Scottish National Party (SNP) currently enjoys a majority of seats in the Scottish Parliament following the 2011 election. In their manifesto commitment, the SNP stated its intention to hold a referendum on full Scottish independence

The referendum (held in 2014) was intended to give Scotland full sovereignty

There was a question of whether or not the Scottish Parliament has the power to hold such a referendum:

  • On the one hand it was argued that the referendum was illegal as constitutional matters are reserved matters of the Westminster Parliament
  • However, the House of Lords in Robinson v Sec of State for N. Ireland [2002] said that s29 and schedule 5 of the Scotland Act should be interpreted generously because it is a constitutional statute, and on this basis the competence to hold a referendum should be allowed

The UK government was not against the referendum and a compromise based on s30 of the Scotland Act was reached

  • On 15 October 2012 (the Edinburgh Agreement): “[The UK and the Scottish governments] have agreed to work together to ensure that a referendum on Scottish independence can take place. … [They] have agreed to promote an Order in Council under Section 30 of the Scotland Act 1998 in the [UK] and Scottish Parliaments to allow a single-question referendum on Scottish independence to be held before the end of 2014.”

On 14 November 2013, the Scottish Independence Referendum Act 2013 was enacted to allow a referendum on Scottish Independence in September 2014

  • This referendum ultimately failed

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CONTENT

Westminster legislating for Scotland

Nothing in the Scotland Act or any other Act prevents the Westminster Parliament legislating on matters devolved to Scotland

Indeed, it may be convenient (for both Scotland and the rest of the UK) for the Westminster Parliament to legislate for all of the UK

The “Sewel convention” requires that the consent of the Scottish Parliament should be sought in such circumstances

  • Sewel convention: "Devolution does not prevent Westminster legislating for Scotland even in relation to devolved matters”

Wales

1997 Referendum

A 1997 referendum asked one question only with respect to Wales: “do you agree that there should be a Welsh Assembly?”

  • It was narrowly held that there should (50.3% to 49.7%)

The Framework

The Government of Wales Act 1998 established the Welsh Assembly

  • It placed the existing Welsh administration under the control of an elected Welsh Assembly
  • The legislative powers of the Assembly encompassed delegated powers only.
  • There is no power for the Welsh Assembly to make primary law as other devolved states could → the Government of Wales Act 2006 dealt with issues like this

The Government of Wales Act 2006:

  • This enabled executive and legislative devolution
  • It reformed electoral arrangements
  • It enhanced the legislative powers of the Welsh Assembly

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