Devolution involves the delegation of state power by national government to a sub national level.
- Devolution provides recognition of the historic existence of separate nations and acknowledges their right to determine their own affairs
- Devolution eases pressures on sub national units to secede from the state to satisfy the above
- Devolution may increase efficiency; power is best exercised and held accountable at the level at which it most directly affects people
- Devolution may free the central government from focusing on local issues and allow it to concentrate on broader issues
- Devolution may lead to the fragmentation and eventual breakup of the United Kingdom
- Devolution may lead to inequality between regions; there should be uniformity in the treatment of citizens within a state
- Devolution means the addition of another layer of government
The debate about transferring power from the central state to a sub national level in the United Kingdom is not new. There was much debate about devolution at the beginning of the 20th century in relation to Ireland—this was the debate over ‘Home Rule’. Indeed, how to deal with Ireland, then entirely part of the United Kingdom, was the central political issue in early 20th century British politics.
The eventual partition of Ireland into the Irish Free State (later the Republic of Eire) and Northern Ireland, which remained part of the United Kingdom, ended with the establishment of a bicameral Parliament in Stormont, Belfast, in 1921. The Government of Ireland Act 1920 in fact established parliaments for both Northern and Southern Ireland, but ultimately the Irish Free State rejected this.
The Parliament was empowered to make laws for the peace, order, and good government of Northern Ireland, although some areas of competence remained reserved to Westminster.
These ‘reserved’ areas included:
The Northern Ireland Parliament was an early example of devolved government. In practice, the Northern Irish Parliament was dominated by the Protestant majority in Northern Ireland.
The Northern Irish Parliament was suspended in 1972 in the face of increasing violence in the region, and direct rule by Westminster was imposed. From 1972 until 1999 Northern Ireland in effect was governed by the Secretary of State for Northern Ireland. During this time legislation for Northern Ireland was enacted by Westminster.
There were other institutions in Westminster which recognised and acknowledged the United Kingdom’s multinational character. For instance, Secretaries of State for Scotland, Wales and Northern Ireland were created over the 19th and 20th centuries to represent the three nations’ interests at Westminster; and so too with the Scottish, Welsh and Northern Irish grand committees in the UK Parliament. All of these institutions, however, were ultimately responsible only to the UK Parliament.
Devolution became a national issue again in the 1970s. The rise of nationalist parties in Scotland and Wales, the relative electoral success of the Scottish Nationalist Party in Scotland, and the weakness of its majority at Westminster, encouraged the Labour government to rethink devolution. This ultimately led to referendums on devolution in both Scotland and Wales in 1979. Both failed. In Scotland, although 51.6% voted in favour of devolution, this only constituted 32.9% of all eligible electors. A positive vote of 40% of all eligible electors was required to establish a devolved legislature. In Wales, 80% voted against devolution.
The Labour Party committed itself to devolved government for the regions in its 1997 electoral manifesto. After Labour came to power in 1997, referendums were held in Scotland, Wales and Northern Ireland. In each of those regions, the majority of those participating voted in favour of establishing devolved government.
Since 1999 both Scotland and Northern Ireland have had legislatures which can enact primary legislation on certain devolved matters; the Welsh National Assembly acquired a similar capacity in 2006. Where power is not devolved, it is ‘reserved’ to the UK Parliament. Generally speaking, matters which remain the responsibility of the UK Parliament include foreign relations, national security, the constitution, and taxation.
All three devolved legislatures, being ultimately ‘subordinate’ to Westminster, specifically lack the power to legislate incompatibly with EC law, the European Convention on Human Rights, and the Human Rights Act 1998.
The devolutionary settlements (devolution arrangements made for each country) are not equal: the powers, composition and executive arrangements of Scotland, Wales and Northern Ireland all differ in form and scope and have been subject to different schedules. Thus Douglas Hurd argued that devolution was “producing a system of amazing untidiness … a Kingdom of four parts, of three Secretaries of State each with different powers, of two Assemblies and one Parliament, each different in composition and powers from the others.”
Each UK region remains represented by a number of MPs at Westminster roughly in proportion to its population.
The Parliamentary Voting System and Constituencies Act 2011 contains provisions for reducing the total number of MPs in Westminster. These provisions have an asymmetrical effect on the regions. It is thought that Wales will be hit the hardest, losing 25% of their seats. Northern Ireland is expected to lose 17%, Scotland 12% and England 6%.
The devolutionary settlements have been accompanied by a set of administrative arrangements intended to facilitate relations between Westminster and the devolved regions smoother.
The Lord Chancellor and the Ministry of Justice have current overall responsibility for devolutionary policy at Westminster.
The devolved regions (Scotland, Wales and Northern Ireland) each has a Secretary of State and an office located at Westminster. Each Secretary of State represents the interests of his or her respective nation at Westminster, acting as a guardian of devolution and ensuring the region’s interests are fully taken into account.
These Secretaries are responsible to the UK Parliament, not the respective devolved legislatures. In their respective regions, the Secretaries of State represent UK government interests. In practice, however, the devolved regions usually liaise with the relevant UK government departments.
The Scottish, Welsh and Northern Ireland Affairs Select Committees examine the administration, policy and expenditure of their corresponding offices as well as relations with their relevant devolved Parliament or Assembly.
In 2007, nine English regional ministers were appointed at Westminster. They were given a similar role to the devolved regions’ Secretaries of State. They were tasked with providing ‘a clear sense of strategic direction’ for their respective regions, to represent the regions’ interests in central government, and represent the central government in the regions. The Coalition government chose not to appoint any regional ministers when they came to power in 2010, essentially abolishing the offices.
Correspondingly, English regional select committees which had been set up to examine the work of the Westminster departments responsible for a particular English region were not re-established after the 2010 general election.
England, alone of the three nations, has no separate legislature and government; it is governed solely by Westminster. This is the foundation of ‘the English question’.
In light of this issue, the Labour government suggested the establishment of regional assemblies. The public appetite for such bodies was tested in 2004, when a referendum was held in the Northeast of England on the matter. On a 50% turnout, 78% of those voting rejected the idea of a regional Parliament. The idea of regional government for the Northeast was dropped.
In 2007, nine regional ministers were appointed at Westminster as part of the Governance of Britain policy in 2007. The nine regions represented were:
East of England
Yorkshire and the Humber
The stated role of the ministers was “to provide a clear sense of strategic direction for the nine English regions and to help strengthen their links with central government.”
These ministerial positions were effectively abolished by the Coalition Government in 2010.
In the 1997 referendum, the Scottish electorate was asked two questions: should there be a Scottish Parliament, and should such a Parliament have tax-varying powers. Of those who voted, 74.3% voted yes to a Scottish Parliament, and 63.5% voted yes for tax-varying powers. A Scottish Parliament with tax-varying powers was established under the Scotland Act 1998. In May 2010 The Scottish Nationalist Party won a majority on the Scottish Parliament, and announced plans for a referendum on independence from Britain.
The composition of the unicameral Scottish Parliament is determined by a proportional representation system (AMS). There are 129 MSPs in the Scottish Parliament: 73 are elected by constituency vote and the remaining 56 by party vote. There are constitutionally required fixed-term elections every 5 years.
As a result of proportional representation, it is difficult for any one party to win a majority in the Scottish Parliament. This meant in the past that, on election night, Scottish political parties negotiated amongst themselves to form a stable government. In the first two parliamentary terms, the Scottish Labour Party and the Liberal Democrats functioned relatively well as a majority coalition; the next Scottish government was the Scottish Nationalist Party, running as a minority government. They proceded to increase their advantage in the 2011 election, winning a majority in spite of the fact that Scotland’s Additional Member system (by design) involves a tendency towards coalitions.
The powers of the Scottish Parliament are determined by the Scotland Act 1998. In essence, the Scottish Parliament can enact primary and secondary legislation on any matter not reserved to the UK Parliament.
The areas reserved to Westminster are set out in the Scotland Act, and include matters such as:
- the constitution
- defence and national security
- the fiscal, economic and monetary system
- trade and industry
- some aspects of transport
- social security
- foreign affairs
- the civil service
- immigration and nationality
- energy: electricity, coal, oil, gas, nuclear energy
- equal opportunities
Matters devolved to Scotland include:
- education and training
- local government
- social work
- tourism, economic development and financial assistance to industry
- some aspects of transport
- law and home affairs, including most aspects of criminal and civil law
- the police and fire services
- agriculture, forestry and fishing
There is an understanding that the UK Parliament will not legislate on a devolved matter without first obtaining the consent of the Scottish Parliament: this is known as the Sewell convention. Although the Westminster Parliament in theory could legislate on any matter in contravention of the Scotland Act, it does not, because this violates the spirit of devolution.
THE CALMAN COMMISSION
The Calman Commission was set up in 2007 to re-examine the devolutionary settlement 10 years on. It was established at the behest of the pro-union opposition parties at the Scottish Parliament, and was a response to the SNP government’s ‘National Conversation’ paper designed to look at options for Scotland’s constitutional future—in particular, independence.
The Calman Commission’s final report was published in 2009. It was not concerned with Scottish independence; it accepted the current division of powers and was only concerned with improving the current devolutionary relationship. Key recommendations included:
- The reduction of income tax by 10p across all rates by the UK Treasury, with a corresponding reduction in the block grant from Westminster. Holyrood would then be given the power to make up the difference: they can choose to tax more or less.
- The continued use of the Barnett formula.
- Devolution to the Scottish Parliament of a number of other taxes, such as the Stamp duty, aggregates levy and landfill tax.
- Devolution to the Scottish Parliament of the power to legislate on such matters as drink-driving, speeding limits and the running of Scottish elections.
The Scotland Bill 2010-12 was introduced by the Coalition government to implement the Calman Commission’s recommendations.
THE CONSTITUTIONAL FUTURE OF SCOTLAND
On St Andrew’s day, 30 November 2009, the Scottish government published a white paper on the constitutional future of Scotland, with independence as its favoured option. In the view of the First Minister, Alex Salmond, independence is the only way that Scotland will be able to achieve its full economic potential. During that sitting of the Assembly, Salmond was unable to gain the support needed for a referendum on independence. Since winning a majority he has called for a referendum to be held on the issue by 2014.
In the 1997 referendum, the Welsh electorate was asked simply if there should be a Welsh Assembly. Of those who voted, 50.3% voted yes. The Welsh National Assembly was accordingly established under the Wales Act 1998.
The composition of the unicameral Welsh National Assembly is determined by a proportional representation system (AMS). There are 60 AMs (Assembly Members): 40 are elected by constituency vote and the remainder by party vote. There is a fixed 5-year electoral term.
Under proportional representation, no single party has gained a majority in the Welsh Assembly, although currently the Labour party has exactly half of the members (i.e. 1 seat short of a majority). Welsh governments have been reasonably stable, aided by the fixed parliamentary term.
The Government of Wales Act 1998 gave the Welsh National Assembly the power to enact secondary legislation but did devolve the power to make primary legislation.
The 2006 Wales Act granted to the Welsh National Assembly the power to make ‘measures’, which are equivalent to primary legislation, on certain areas. This power was far more narrowly defined than the power of the Scottish Parliament, but could be expanded by legislation passed in Westminster.
The 2009 All Wales Convention was set up by the governing coalition government of Labour and Plaid Cyrmu in 2007 to examine the state of the devolutionary settlement in Wales, and to determine public opinion on whether or not the National Assembly should be given greater law-making powers as in Scotland.
The 2011 Referendum asked the Welsh population;
“Do you want the Assembly to be able to make laws for all 20 areas it has powers for?”
A 63.49% majority voted in favour of greater legislative powers, on a 35.2% turnout. As a result, the Welsh Assembly gained direct law making powers (without the need to consult Westminster) in 20 subject areas outlined in the Government of Wales Act 2006.
Devolution for Northern Ireland was very different to the parallel processes set up for Wales and Scotland, because it was part of a broader attempt to bring to an end ongoing conflict within the region.
The 1998 Good Friday Agreement agreed that, amongst other things, a new Northern Ireland Assembly would be established, along with a power-sharing executive.
The Good Friday Agreement was ratified by referendums both in North Ireland and the Irish Republic. In Northern Ireland, 71.1% of those participating voted in favour of the agreement; in the Irish Republic, 94.4% voted in favour of giving up territorial claims to Northern Ireland. The Northern Ireland Assembly was established by the Northern Ireland Act 1998.
The composition of the Northern Ireland Assembly is determined by a proportional representation system (STV). There are 108 MLAs (members of the Legislative Assembly), representing 18 constituencies. Each constituency is represented by 6 MLAs. There is a fixed 4-year term.
The Northern Irish government consists of a First Minister, a Deputy First Minister and 10 other Ministers. There is a complex arrangement to ensure that power is shared between major political parties. The First and Deputy First Minister are chosen by the Assembly, and must gain both a majority of the Assembly members voting, and a majority from both Nationalist and Unionist parties. The First and Deputy First Ministers must act jointly in all matters. Furthermore, and unlike the other devolved regions, the 10 remaining ministerial positions are not chosen by the First and Deputy First Ministers, but instead allocated in proportion to the strength of the parties in the Assembly. This in effect creates a ‘compulsory coalition’. However, the Assembly was suspended in 2002 when the key political parties were unable to work together. When the Northern Ireland Assembly was suspended, executive functions were exercised by the Secretary of State for Northern Ireland—in short, there was direct rule of Northern Ireland again. A transitional Assembly was convened in 2006 and the National Assembly re-established in 2007.
There is a Northern Irish civil service, which is responsible to the Northern Irish executive.
The allocation of powers to the Northern Ireland Assembly is somewhat complex. Under the Northern Ireland Act 1998, there were three categories of legislative powers:
- excepted matters, which can only be transferred by primary legislation at Westminster; but are envisaged to always be the responsibility of the UK Parliament
- reserved matters, which can be transferred by order, if there is cross-community consent
- transferred matters, which are the responsibility of the Assembly.
However on the 12th April 2010 the Assembly took responsibility for policing and justice following an agreement between the DUP and Sinn Fein. Only the Ulster Unionist Party opposed the vote in the Assembly.
Excepted matters under the Northern Ireland Act included:
- the Crown
- parliamentary elections, and Assembly elections including the franchise
- international relations
- defence of the realm
- national taxation
- appointment and removal of judges
- registration of political parties
- national security
- nuclear energy and installations
- provisions dealt with in the Northern Ireland Constitution Act 1973
- the subject matter of the Northern Ireland Act 1998 with specified exceptions
Reserved matters included:
- criminal law
- civil aviation
- the Post Office
- disqualification from membership of the Assembly
- emergency powers
- civil defence
Transferred matters included:
- finance and personnel
- health, social services and public safety
- agriculture and rural development
- enterprise, trade and investment
- learning and employment
- regional development
- social development
In essence, the Northern Ireland Assembly has a similar broad set of legislative powers to the Scottish Parliament. Where it differed is in the matters reserved to Westminster—matters linked to social order, policing and criminal justice. Accordingly the vote of April 2010 is of considerable signifiance to the status of the Assembly. In addition to the elements set out above, the Assembly cannot pass a law which discriminates on the basis of religious belief or political opinion.
The devolved regions have few means of raising their own revenue. The Scottish Parliament currently has a very limited power to raise or lower the amount of income tax under the Scotland Act 1998. Generally speaking, much funding for the devolved areas comes by block grant from Westminster, allocated in accordance with the ‘Barnett formula’. In essence, the Barnett formula takes per capita spending levels in England as the baseline. Where changes are made to spending levels in England, funding to the other three regions is changed accordingly. The changes in per capita spending to the other three regions are made with the ultimate aim of bringing spending levels down to England’s level: historically, the three regions have received more public funding than England.
- Index of changes in the territorial distribution of overall per capita public spending
Many people are critical of the Barnett formula, including Lord Barnett, the Treasury official after whom the formula was named.Criticisms of the Barnett Formula include:
The formula is concerned with changes in the levels of public expenditure, not the levels themselves
The formula takes no account of the actual needs of the regions; it may be that one region needs more public funds than another region
The formula pits the devolved regions against the central government. The devolved regions are not responsible for raising their own revenue and the formula ultimately aims to reduce the devolved regions’ per capita spending to the level of England.
Both the Conservative and Liberal Democrat 2010 manifestos pledged to replace the Barnett Formula. The Coalition Agreement 2010 included no reference to this.
What do others think?
The English Question, Robert Hazell (The Constitution Unit, UCL), 2006
An Introduction to Devolution in the UK, House of Commons Library, 2003
The UK Devolved Legislatures: Some Comparisons between Their Powers and Work, House of Commons Library, 2007
House of Commons Library Standard Note Concordats and Devolution Guidance Notes, House of Commons Library, 2005
The Sewell Convention, House of Commons Library, 2005
The West Lothian Question, House of Commons Library, 2010
Report on the Barnett Formula, Lords Select Committee on the Barnett formula, 2009
Secretary of State for Scotland
The Commission on Scottish Devolution (the Calman Commission)
Welsh Assembly Government
Secretary of State for Wales
Northern Ireland Assembly
Northern Ireland Executive
Secretary of State for Northern Ireland
Parliamentary Note – “The Commission on Scottish Devolution—The Calman Commission”