Assess whether devolution has moved the United Kingdom away from being a unitary state towards a
system that more resembles federalism. 2023B
Consider whether a federal solution would solve the problems stemming from the legal structure of
devolved government in the United Kingdom. 2023A
Consider the proposition that, as a consequence of the reforms since 1997, the UK has now acquired a
federal constitution. 2022B
Discuss whether devolution has transformed Westminster into a quasi-federal Parliament. 2021B
Discuss whether devolution has strengthened or weakened the United Kingdom. 2021A
Consider whether devolution to Scotland, Wales and Northern Ireland has strengthened or weakened
the Union of four nations.2020B
Discuss whether a federal system would improve the current devolution arrangements for the United
Kingdom.2020A
Discuss the claim that the devolved structure of each part of the UK is immensely complicated, but
that the overall constitutional arrangement of the UK is clear and straightforward.2019B
Law cases, reports and other references the examiners would expect you to use Scotland Act 1998/2016
Government of Wales Act 1998/2006/2017; Northern Ireland Act 1998, Scottish Continuity Bill, UN
Convention on the Rights of the Child (Incorporation) Bill Reference.
3.1 A brief history of the UK
In the 1530s there was a Union between England and Wales. The Laws in Wales Act was passed in 1536
by the English Parliament which provided for, among other things, the representation of the Welsh
constituencies in the House of Commons. Then in 1707 the Anglo-Scottish Union formed Great Britain.
The Acts of Union (as they are collectively known) were passed by the English and Scottish Parliaments
in 1706 and 1707 and united the two independent Parliaments as one Parliament of Great Britain.
Unlike the Union with Wales, Scotland retained its own legal system. The next stage was the British–Irish
Union of 1801 which formed the United Kingdom of Great Britain and Ireland. Following the division of
Ireland into Northern Ireland and Eire (the Irish Free State) in the 1920s, the current unitary state was
created – the United Kingdom of Great Britain and Northern Ireland.
3.2 Defining devolution
The term ‘devolution’ is derived from the Latin ‘to roll down’. It refers to the process in the United
Kingdom of transferring power from the centre (Westminster) to the separate nations and regions. It
involves a downward transfer of power from the supreme Westminster Parliament to a subordinate
legislature
In McEldowney’s words: “Devolution provides various powers to the nations, as a form of self-
government, but this does not create any entrenched autonomous powers because devolution
maintains the sovereignty of the UK Parliament. It is important to be clear in distinguishing devolution,
where powers are transferred but the UK Parliament does not relinquish any of its sovereignty, from a
formal federal system.”
In the UK, the devolved governments have been created via statute and because of the doctrine of
parliamentary sovereignty, devolution is, at least in theory, reversible. By contrast, under a federal
system of government the constituent parts of the state enjoy autonomy and sovereignty.
3.2.1 Administrative, executive and legislative devolution
The different ‘forms’ devolution may take are described in a House of Commons Library Briefing Paper
(‘Introduction to devolution in the UK’) as follows:
Administrative – the practice of transferring central government responsibilities to territorial
departments of the same government.
Executive – where the prerogative powers of the UK Government are transferred to ministers of
devolved governments or, in England, elected ‘metro’ mayors.
Legislative – where law-making powers are transferred from Westminster to other legislatures within
the UK.
3.3 Background developments
The Royal Commission on the Constitution, commonly known as ‘the Kilbrandon Commission’ (after its
chair), which reported in 1973, rejected federalism for the UK as ‘not an appropriate place for
federalism and now is not an appropriate time’. Sovereignty was viewed as being indivisible. The
Kilbrandon Commission did, however, recommend some devolution of power to Scotland and Wales.
There were attempts at devolving powers to Wales and Scotland in the late 1970s and oddly these took
the form of legislation first, referendum later. Referendums were held in 1979 but did not achieve the
necessary threshold of public support and thus the (pre-emptive) legislation – the Wales Act 1978 and
Scotland Act 1978 – was subsequently repealed without having taken effect.
3.3.1 Asymmetry of devolution
It is usual to refer to the asymmetry of devolution in the UK, but what does this mean? Simply put,
asymmetrical devolution refers to the position under which different parts of the UK have different
forms of devolution and varying levels of power.
3.4 Devolution in Scotland
On 11 September 1997 a referendum was held for the Scottish people which asked (1) whether they
wanted a Scottish Parliament, and (2) whether that Parliament should have (limited) tax varying powers.
The creation of the Parliament was voted for by 74 per cent and the tax-raising powers by 63 per cent.
Turnout was 60 per cent. These measures were implemented via the Scotland Act 1998, which made
provision for a Scottish Government of Ministers and a Scottish Parliament to which they would be
accountable. The Scottish Parliament was officially convened on 1 July 1999 and powers which were
previously exercised by the Secretary State for Scotland (and other UK ministers) were transferred to
Scottish ministers.
The Scottish Parliament has the power to pass primary legislation and s.29 of the Scotland Act 1998
provides that the Scottish Parliament’s legislative competence extends to all areas of law (with a few
limited exceptions) which are not ‘reserved matters’. Schedule 5 sets out the reserved matters. The
Scotland Act 2012 made further changes to the devolution settlement in Scotland in response to the
recommendations of the Calman Commission, including giving the Scottish Parliament the power to set
a separate Scottish income tax rate. The Scotland Act 2016 made additional amendments to the 1998
Act and devolved further power, giving effect to the recommendations of the Smith Commission. The
cross-party Smith Commission was established after the ‘No’ vote in the Scottish independence
referendum of September 2014.
In summary, the Scotland Act 2016: • declares that the Scottish Parliament and the Scottish Government
are considered permanent parts of the UK’s constitutional arrangements and will not be abolished
without a decision of the people of Scotland. It also recognises that the UK Parliament will not normally
legislate in relation to devolved matters without the consent of the Scottish Parliament, while retaining
the sovereignty to do so • gives increased autonomy to the Scottish Parliament and the Scottish
Ministers in relation to the operation of Scottish Parliament and local government elections in Scotland
• gives increased autonomy to the Scottish Parliament in relation to the power to amend sections of the
Scotland Act 1998 which relate to the operation of the Scottish Parliament and the Scottish Government
within the United Kingdom • increases the financial accountability of the Scottish Parliament through
devolution of the rates and bands of income tax, air passenger duty and aggregates levy, and
assignment of VAT revenues • increases responsibility for welfare policy and delivery in Scotland
through the devolution of welfare powers to the Scottish Parliament and/or the Scottish Ministers •
gives significant responsibility to Scotland for areas such as road signs, speed limits, onshore oil and gas
extraction, consumer advocacy and advice, among others, by devolution of powers in relation to these
fields to the Scottish Parliament and the Scottish Ministers and • increases scrutiny for the Scottish
Parliament of specific bodies and increases the ability of the Scottish Government to design schemes
relating to energy efficiency and fuel poverty by the devolution of functions to the Scottish Ministers.
3.4.1 The Sewel convention
This constitutional convention dates from 1998 when Lord Sewell (the Scotland Bill’s sponsoring minister
in the House of Lords) gave a commitment that when the Westminster or UK Parliament legislated in a
devolved area (for a matter which had been devolved) it would ‘not normally’ legislate without the
consent of the Scottish Parliament. This consent would be given through a legislative consent motion.
The Sewel convention has now been given statutory recognition by inserting into s.28 of the Scotland
Act (by s.2 of the 2016 Act), immediately after the subsection preserving the power of the UK Parliament
to make laws for Scotland, the following subsection: ‘(8) But it is recognised that the Parliament of the
United Kingdom will not normally legislate with regard to devolved matters without the consent of the
Scottish Parliament.’
In Miller v Secretary of State for Exiting the European Union [2017] UKSC 5 (paras 136–37) the Supreme
Court explained that, although the Sewel convention cannot be enforced by the courts, it nonetheless
plays an important role in facilitating harmonious relationships between the UK Parliament and the
devolved legislatures.
3.4.2 The Scottish Continuity Bill
In May 2018 the Scottish Parliament refused consent for the European Union (Withdrawal) Bill. The Bill
was subsequently granted Royal Assent in spite of this, and became the European Union (Withdrawal)
Act 2018. This prompted the Scottish Government to draft and introduce to the Scottish Parliament the
UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. This (Scottish) Bill prompted a
reference to be made, by the Attorney General and the Advocate General for Scotland, under s.33(1)
Scotland Act 1998, for the Supreme Court to determine whether the (Scottish) Continuity Bill was within
the legislative competence of the Scottish Parliament.
The subsequent Supreme Court decision is commonly referred to as the ‘Continuity Bill’ case (formally
THE UK WITHDRAWAL FROM THE EUROPEAN UNION (LEGAL CONTINUITY) (SCOTLAND) BILL – A
Reference by the Attorney General and the Advocate General for Scotland (Scotland) [2018] UKSC 64).
The following extract from the judgment explains this aspect of the Scotland Act [emphasis added]:
“Since the Scottish Parliament commenced its work on 2 July 1999, the courts have had occasion to
interpret the law by which it is governed. The main principles may be summarised as follows. The
powers of the Scottish Parliament, like those of Parliaments in many other constitutional democracies,
are delimited by law. The Scottish Parliament is a democratically elected legislature with a mandate to
make laws for people in Scotland. It has plenary powers within the limits of its legislative competence.
But it does not enjoy the sovereignty of the Crown in Parliament; rules delimiting its legislative
competence are found in section 29 of and Schedules 4 and 5 to the Scotland Act, to which the courts
must give effect. And the UK Parliament also has power to make laws for Scotland, a power which the
legislation of the Scottish Parliament cannot affect: section 28(7) of the Scotland Act. The Scotland Act
must be interpreted in the same way as any other statute. The courts have regard to its aim to achieve a
constitutional settlement and therefore recognise the importance of giving a consistent and predictable
interpretation of the Scotland Act so that the Scottish Parliament has a coherent, stable and workable
system within which to exercise its legislative power. This is achieved by interpreting the rules as to
competence in the Scotland Act according to the ordinary meaning of the words used. (para.12)”
Although the Supreme Court rejected the Government’s claim that the whole of the Scottish Bill was
invalid because it was outside the Scottish Parliament’s legislative competence, the Court concluded
that a number of provisions were outside the competence of the Scottish Parliament and were thus ‘not
law’ (as per s.29(1) Scotland Act 1998). Thus, the Continuity Bill could not proceed.
3.5 Scottish independence
3.5.1 Referendum on independence
In September 2014 the Scottish people voted ‘no’ in a referendum on independence for Scotland. On
the proposition ‘Should Scotland be an independent country?’ 55.3 per cent of electors voted ‘No’ and
44.7 per cent voted ‘Yes’. There was a majority for ‘No’ in 28 of Scotland’s 32 local authority areas,
including the capital, Edinburgh. There was a majority for ‘Yes’ in Scotland’s largest city, Glasgow. For
the first time, 16- and 17-year-olds were eligible to vote.
3.5.2 Recent developments
In the wake of the Brexit referendum in 2016, after a (slim) majority of the UK as a whole voted to leave
the European Union (EU) while a majority in Scotland voted to remain, the Scottish Government held a
consultation on a draft independence referendum Bill. For a summary see: www.bbc.co.uk/news/ uk-
scotland-scotland-politics-37708545
3.6 Devolution in Wales
On 18 September 1997 a referendum was held in Wales which asked the question ‘Do you agree that
there should be a Welsh Assembly as proposed by the government?’ A slim majority (50.3 to 49.7 per
cent) voted in favour with a turnout of 50.22 per cent. This more limited form of self-government was
legislated for in the Government of Wales Act 1998 and then in 1999 the National Assembly for Wales
was established.
In many ways the much less definitive support for devolution and the more limited nature of the
devolution settlement reflects the nature of the more closely entwined relationship between England
and Wales – politically, legally and economically – over centuries.
The original devolution settlement in 1998 did not give the National Assembly for Wales any primary
law-making powers. The Government of Wales Act 2006 fulfilled a government commitment to
increasing the devolved powers leading to the creation of a separate legislature (the National Assembly
for Wales) and executive (the Welsh Assembly Government) with ministers who are members of, and
accountable to, the Assembly following the May 2007 elections.
Schedule 7A to the Government of Wales Act 2006 defines the scope of the Assembly’s legislative
competence to make Assembly Acts. It sets out the areas of policy on which only Parliament can
legislate. Any area not listed in Schedule 7A is devolved to the National Assembly for Wales
The Wales Act 2014 implemented recommendations made in the first report of the Commission on
Devolution in Wales (the ‘Silk Commission’) to devolve fiscal powers to the National Assembly for Wales
for the first time. The 2014 Act also amended the statutory name of the executive to the Welsh
Government.
The Wales Act 2017 made further changes to the devolution settlement for Wales, implementing the
Government’s commitments in the Command Paper, ‘Powers for a Purpose: Towards a Lasting
Devolution Settlement for Wales’ (known as the ‘St David’s Day Agreement’), which required legislative
changes. This included putting in place a reserved powers model of devolution for Wales, and devolving
further powers to the Assembly and Welsh ministers in areas such as elections, transport, energy and
the natural environment.
3.7 Devolution in Northern Ireland
The Northern Ireland Act 1998 provides for devolution to the Northern Ireland Assembly which sits at
the Parliament Buildings in Belfast, known as Stormont. The devolution settlement for Northern Ireland
describes the areas over which the Assembly has legislative control as ‘transferred matters’ (these are
mainly in the economic and social field) and the central UK Government retains responsibility for the
‘excepted matters’ of national importance.
3.7.1 The ‘Good Friday’ or Belfast Agreement
The Agreement which was reached on Good Friday in 1998 after two years of multiparty negotiations
underpins the policy adopted in Northern Ireland. It was the endorsement of the ‘Good Friday’
Agreement by 71.1 per cent of electors (with a turnout of 81 per cent) in a referendum in Northern
Ireland on 22 May 1998 that led to the Northern Ireland Act 1998 and the establishment of the Northern
Ireland Assembly.
Section 4 of the Northern Ireland Act 1998 sets out three categories of legislative competences:
1. excepted matters – these were matters never intended to be devolved, including defence and
nationality (Schedule 2) 2. reserved matters – these were matters which may be devolved in the future,
including civil aviation (Schedule 3) 3. transferred matters – these were matters that have been
transferred to the Assembly, including police and judicial matters.
Reflecting the unique and troubled history of Northern Ireland, a requirement for cross-community
collaboration is built into the operation of the Northern Ireland Executive where the First Minister (a
Unionist representing the largest party) and the Deputy First Minister (a Republican representing the
second largest party) are required to cooperate in a number of important ways.
After the collapse of the power-sharing executive in Northern Ireland in 2017 the Assembly was
suspended, until very recently. During suspension responsibility for the direction and control of
government in Northern Ireland lay with the Secretary of State for Northern Ireland and the Northern
Ireland Office. After various extensive negotiations and the publication of a new Agreement – New
Decade, New Approach – in January 2020, devolved government has been restored in Northern Ireland
and a new five-party Executive has been formed.
3.8 English Votes for English Laws (EVEL)
As devolution increased and developed, England, by far the most populous nation in the United
Kingdom, remained something of an anomaly in having no specifically ‘English’ governance. In addition,
English MPs could not vote on devolved laws that apply to the devolved administrations but MPs from
the devolved nations were able to vote on English matters. This is often referred to as the West Lothian
question, so named after the former MP for West Lothian Tam Dalyell who raised the question in
Parliament.
In 2015 this was resolved, not, as might have been expected, via statute, but through a change to the
Standing Orders in the House of Commons. This change gives effect to recommendations of the McKay
Commission (which had reported in 2013) and means that MPs from England (or sometimes from
England and Wales) can give their consent to legislation that affects only England, or England and Wales,
and which is within devolved legislative competence.
3.9 Intergovernmental relations 3.9.1 Joint Ministerial Committee
The Joint Ministerial Committee (JMC) was formed in 1999 as devolution took place. It is a formal
method for discussions between the UK and devolved administrations in Scotland, Wales and Northern
Ireland on a range of issues. The JMC’s terms of reference are set out in a (non-binding) Memorandum
of Understanding which was first published in October 1999. These are:
u to consider non-devolved matters which impinge on devolved responsibilities, and devolved matters
which impinge on non-devolved responsibilities u where the UK Government and the devolved
administrations so agree, to consider devolved matters if it is beneficial to discuss their respective
treatment in the different parts of the UK u to keep the arrangements for liaison between the UK
Government and the devolved administrations under review, and u to consider disputes between the
administrations.
In March 2018 during a plenary session of the JMC, the UK Prime Minister and First Ministers of Scotland
and Wales committed to ‘review and report to Ministers on the existing intergovernmental structures,
including the Memorandum of Understanding, to ensure they are fit for purpose in light of the UK’s exit
from the EU’
3.9.2 Territorial secretaries of state
Post-devolution there are still UK government ministers for Scotland, Northern Ireland and Wales. The
House of Commons Library Briefing Paper ‘Introduction to devolution in the UK’ explains that since
2007, however, their role has predominantly become ‘one of intergovernmental mediation and
facilitation between UK government departments and the devolved administrations’. In addition,
‘working closely with the Cabinet Office, the territorial departments also assumed responsibility for
legislative proposals to further develop the devolution settlement, including the Scotland Acts 2012 and
2016 and the Wales Acts 2014 and 2017’.
3.10 Brexit and devolution
One added difficulty for the already complex and contentious matter of Brexit related to the different
voting outcomes in the four nations of the United Kingdom. A majority of the electorate in England and
Wales voted to leave whereas a majority in Scotland and Northern Ireland voted to remain.
3.11 COVID-19 and the four nations of the United Kingdom
Most of the regulations and restrictions imposed as a result of the COVID-19 pandemic relate to
devolved matters and so each of the four nations within the United Kingdom – England, Wales, Scotland
and Northern Ireland – have introduced different measures. There has been a greater or lesser degree
of co-ordination between them but this is an interesting and topical example of the complexity caused
by devolution and the result of there being, at times, quite marked differences in the rules around
‘lockdown’ and other restrictions across the UK.
