By Mark Elliott
Professor of Public Law, University of Cambridge
Until relatively recently, it was often said that the United Kingdom had a very centralised system of government. Power was concentrated in London, with the country administered by the UK Government and laws made by the Parliament in Westminster. That all changed in the late 1990s when devolution was introduced in Scotland and Wales and reintroduced in Nothern Ireland. (Devolution, in a different form, existed in Northern Ireland earlier in, and for much of, the 20th century, as we will explain in a later post.)
This involved creating new governments and legislatures for those parts of the UK, enabling them (to some extent) to run their own affairs and make their own laws. We will look in this series of posts at how devolution works (and at the position of England, where there are no comparable devolution arrangements). For the time being, it is worth drawing attention in this introductory post to seven (to some extent interconnected) key points, all of which we will explore in more depth later in this series.
First, and perhaps most obviously, devolution is not the same as independence. Although there are now separate governments and legislatures in Belfast, Edinburgh and Cardiff, Northern Ireland, Scotland and Wales remain — along with England — part of the United Kingdom. This is not to say that one or more of those parts of the UK could not become independent: in fact, a referendum was held in Scotland in 2014 on this very matter, with a narrow majority rejecting independence at that time, and it is quite possible that another referendum on Scottish independence will be held in the foreseeable future.
Second, devolution involves the UK, or Westminster, Parliament granting to the governments and legislatures in the three devolved nations limited powers. They have the authority to deal with some types of issues but not others. For instance, health, social care, education and agriculture are devolved matters. In contrast, defence, foreign affairs and immigration are not, meaning that only the UK Government and Parliament are legally permitted to deal with those matters. Only the Westminster Parliament has the legal authority to decide what is and what is not devolved.
Third, legally and constitutionally, the devolved institutions are in a different legal position from their UK counterparts in London. In particular, the UK Parliament is sovereign, meaning that as a matter of UK law, it has the power to make, amend or repeal any law. In contrast, the devolved legislatures are not sovereign: they have only the powers given to them by Westminster.
At least in theory, this means that the UK Parliament could restrict devolution by removing powers from the Northern Ireland Assembly, the Senedd (or Welsh Parliament) or the Scottish Parliament. But this cuts two ways. It is also open to the UK Parliament to extend devolution by granting additional powers to the devolved institutions — something that has, in fact, happened on several occasions since devolution was first introduced in its current form over 20 years ago. Devolution has thus been described by one of its architects as ‘a process not an event’.
Fourth, devolution entails the sharing not the transfer of power. When the UK Parliament grants powers to the devolved institutions, it does not relinquish those powers permanently. It does not even relinquish them temporarily. Rather, the UK Parliament remains sovereign but, as a matter of constitutional law, shares certain of its powers with devolved institutions.
This means that we can go further than we did in the previous paragraph: not only can the Westminster Parliament subtract from (or add to) the devolved institutions’ powers; it can also, in effect, exercise the very powers it has granted to those institutions. For example, as noted above, social care is a devolved matter, but this does not mean that devolved legislatures have an exclusive right to legislate on it: it remains legally possible for the UK Parliament to do so, including for one or more of the devolved nations.
Fifth, in what has been said so far, phrases such as ‘legally possible’ and ‘in theory’ have featured quite prominently. This highlights another important point: to understand how devolution works, we must come to terms not just with the legal framework but also with its political dimensions. Imagine, for instance, that the Scottish Parliament has enacted legislation concerning social care to which the UK Government takes exception. In law, it would be possible for it to seek to procure UK legislation amending or even repealing that Scottish legislation.
But doing so would, at best, be politically fraught, given that it would involve undermining a democratically taken decision of the Scottish Parliament. Indeed, given how such action might play out in a future independence referendum, it might better be described as politically — even constitutionally — reckless rather than merely fraught. Just because Westminster retains powers as a matter of law does not mean that using them is politically wise or straightforward. While, therefore, it is true that devolution involves Westminster sharing rather than transferring powers, the position is more subtle and complex once political realities are factored in.
Sixth, devolution is asymmetric, meaning that it operates in different ways in, and involves the granting of different powers to, different parts of the country. These differences were most pronounced when devolution was first introduced. Over time, there has been a degree of convergence, with (for example) a comparatively very limited devolution settlement in Wales catching up — to some extent, but not fully — with a more fulsome Scottish devolution scheme. Meanwhile, the system in Northern Ireland is different again, bearing in mind the particular political sensitivities that are in play. For instance, unlike in Scotland and Wales, Northern Ireland has a ‘power-sharing executive’: a form of legally mandated coalition government to ensure cross-community legitimacy. Devolution is thus responsive to the distinct histories and political traditions of different parts of the UK.
Seventh, and finally, devolution does not involve legally guaranteeing the existence or powers of the devolved institutions. (There are now provisions in the Scottish and Welsh devolution legislation recognising the permanence of the devolved institutions, but it is far from clear that this legally guarantees their continued existence.)
In many countries, the existence of sub-national levels of government and the balance of power between them and the central government are set out in legally binding terms in a written constitution. In the absence of such a constitution, devolution in the UK is provided for by nothing more than Acts of the Westminster Parliament (there being no higher form of law in the UK). Ultimately, this means that the UK Parliament cannot just override devolved legislation or remove powers from devolved institutions — it means that it can even abolish devolution entirely.
This, of course, would be even more politically fraught than the lesser forms of ‘interference’ considered above, and the risk of provoking a constitutional crisis that might lead to the break-up of the UK is a powerful disincentive to this sort of intervention. This underlines the importance of seeking to understand devolution through a combination of legal and political lenses, for it is in the complex interplay of law and politics that the reality, as distinct from the theory, of the UK’s modern system of devolved government emerges.