Status of devolved institutions - Relationship between devol...

Learning Outcomes

This article examines the constitutional status of the devolved institutions in Scotland, Wales, and Northern Ireland within the UK legal system, focusing on the legal powers and structures that underpin their authority. It explains the framework of devolved, reserved, and excepted matters, and assesses how legislative competence is determined and contested. The role of Westminster's sovereignty is dissected, including the legal and political limits of its legislative powers over devolved subjects. The discussion clarifies the nature and operation of the Sewel Convention, the mechanisms for referring disputes to the courts (especially the UK Supreme Court), and the fundamental ways that constitutional events such as Brexit have affected the allocation and operation of powers. The article also highlights the relationship between the devolution statutes and the continued development of constitutional conventions, details fiscal devolution arrangements, and evaluates intergovernmental relationships. It aims to provide a grounded understanding of how powers are exercised, challenged, and balanced within the UK's uncodified constitutional framework, equipping you to analyse complex scenarios involving the interplay between Westminster and the devolved governments in all relevant contexts.

SQE1 Syllabus

For SQE1, you are required to understand the legal and constitutional status of devolved institutions in the UK and their relationship with Westminster, with a focus on the following syllabus points:

• the constitutional basis, structure, and purposes of UK devolution
• the powers and legal authority (legislative competence) of Scotland, Wales, and Northern Ireland's legislatures and governments
• the distinction between reserved, devolved, and excepted matters in each settlement
• legal doctrines governing limits on devolved law-making, including ultra vires, the ECHR and former requirements relating to EU law
• the continuing sovereignty of the UK Parliament and current statutory recognitions of that sovereignty
• the legal and constitutional nature of the Sewel Convention, its role in the relationship between Westminster and the devolved legislatures, and its legal effect
• mechanisms for settling disputes over legislative competence, including references to and decisions of the UK Supreme Court
• the impact of changes such as Brexit and the UK Internal Market Act 2020 on the distribution and exercise of powers
• the structure of fiscal devolution, funding arrangements (including the Barnett Formula), and the limits of financial autonomy of devolved governments
• the practical and legal operation of intergovernmental bodies and dispute resolution mechanisms

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is meant by "legislative competence" in the context of devolution?
2. Can the UK Parliament legislate on devolved matters without the consent of the devolved legislatures?
3. What is the Sewel Convention, and is it legally enforceable?
4. Who decides whether a devolved legislature has acted within its legislative competence?
5. How did Brexit affect the division of powers between Westminster and the devolved institutions?

Introduction

Devolution in the United Kingdom is the statutory and constitutional process by which certain legislative and executive powers are transferred from the UK Parliament at Westminster to new legislatures and governments in Scotland, Wales, and Northern Ireland. Devolution forms a central element of the UK’s uncodified constitutional order, allowing for a tailored arrangement reflecting the diverse political and social circumstances of each nation, but always within the overriding framework of the sovereignty of Parliament. The relationship between the devolved institutions and Westminster thus sits at the intersection of legal rights and political conventions, demanding an understanding both of the statutory division of powers and the dynamic, sometimes contested, context shaped by evolving constitutional practice.

Key Term: devolved institution
A body (legislature or government) in Scotland, Wales, or Northern Ireland with legally conferred powers transferred from the UK Parliament, typically established by an Act of Parliament.

Key Term: primary legislation
Law made directly by a legislature, such as the UK Parliament or a devolved legislature, which takes precedence over delegated legislation.

The Legal Basis of Devolution

The constitutional foundations of devolution are found in primary legislation enacted by Parliament:

• Scotland Act 1998 (with amendments, including the Scotland Act 2016)
• Government of Wales Act 2006 (amended by the Wales Acts 2014 and 2017)
• Northern Ireland Act 1998 (with later amendments)

Each statute specifies the structure and powers of the relevant devolved institutions, the processes for their internal decision-making, and the limitations imposed on their legislative and executive authority. Devolution is thus a statutory mechanism: no devolved legislature or government exists in the UK by statutory right, but only by force of Parliament’s authorising Act. Yet each settlement reflects different histories and demands; for example, Scotland follows a reserved powers model, Northern Ireland a system of "excepted", "reserved", and "transferred" matters, and Wales historically evolved from a conferred to a reserved powers model.

The current constitutional settlement recognises the permanence of the devolved institutions (see s 63A Scotland Act 1998, s A1 Government of Wales Act 2006, and s 1 Northern Ireland Act 1998), and that abolition may only occur with approval by referendum in the relevant territory. Nonetheless, legal sovereignty still rests with the Westminster Parliament, a point affirmed by explicit provisions retaining Westminster's right to legislate for each area.

Reserved, Devolved, and Excepted Matters

The powers of each devolved legislature are defined by what they may and may not legislate on, according to their founding statutes.

• Reserved matters: policy areas on which only the UK Parliament may legislate.
• Devolved matters: areas where the devolved legislature has authority to make legislation.
• Excepted matters: (Northern Ireland only) areas wholly outside the competence of the Assembly (e.g., the Crown, international relations, defence).

In Scotland and (since 2017) Wales, the "reserved powers" model applies: the devolved Parliament may legislate on any area unless it has been explicitly reserved to Westminster (see Pt 2 of Sch 5 Scotland Act 1998; Sch 7A Government of Wales Act 2006). In contrast, the Northern Ireland Assembly may legislate on "transferred" matters, with "reserved" and "excepted" subjects set out as off-limits unless power is further devolved.

The division of powers thus fundamentally shapes the legislative competence of each devolved body.

Key Term: reserved matters
Policy areas which are not devolved but kept within the exclusive legislative remit of the UK Parliament. These matters are listed in the relevant schedules of the devolution statutes.

Key Term: excepted matters
In Northern Ireland, excepted matters are areas that cannot be transferred to devolved control and are permanently reserved to the UK Parliament.

Legislative Competence: Scope and Limits

Each devolution statute precisely circumscribes the scope of the devolved legislature’s powers, collectively termed its "legislative competence".

Key Term: legislative competence
The legal authority of a devolved legislature to make laws on particular subjects within its territorial scope, as defined by the founding devolution Act.

Devolved legislatures lack competence to legislate:

• on reserved (or excepted) matters
• in a way that would have extraterritorial effect (save for limited exceptions, e.g., certain criminal and family law provisions)
• in a manner incompatible with the European Convention on Human Rights (ECHR)
• in a way that would (historically) conflict with EU law—note, post-Brexit, this requirement is altered and applies only in certain circumstances (e.g., Northern Ireland Protocol)
• where the proposed law modifies "protected statutes" such as the Human Rights Act 1998, unless the devolution statutes specifically allow it

If a devolved Act is found to exceed these limits (i.e., is ultra vires), the provision or Act in question "is not law".

Key Term: ultra vires
Acting beyond the legal powers granted by law. Legislation made outside the statutory competence of a devolved legislature is ultra vires and void.

The Structure for Determining Competence

Before a Bill receives Royal Assent, the relevant law officer (e.g., the Advocate General for Scotland, the Attorney General, or the Counsel General for Wales) may refer it to the Supreme Court to determine compatibility with the relevant statutory framework. After enactment, legislation can be challenged as ultra vires via judicial review or references to the courts. Sections in the devolution Acts specify mechanisms for challenge and review, reinforcing the rule of law as regards the limits of devolved authority.

Worked Example 1.1

Scenario: The Welsh Parliament passes an Act setting minimum alcohol prices. The UK Government contends that the Act pertains to a reserved matter—specifically, trade and industry.

Answer:
The question of whether the subject-matter is reserved is determined by construing the devolution Act. If the principal purpose of the Act is within devolved competence (e.g., relating to public health, a devolved matter), the Act is likely to be within competence. If the effect is to regulate a reserved matter such as trade as an incident to its primary purpose, the Supreme Court may uphold the devolved legislation (see e.g., judgment in the minimum alcohol pricing litigation in Scotland).

The Continuing Sovereignty of Westminster

The United Kingdom is a unitary state with ultimate legislative authority resting in the UK Parliament. Despite the existence of devolved institutions, the exercise of Westminster's powers is legally unconstrained. This point is made express in every devolution statute, e.g., s 28(7) Scotland Act 1998, s 107(5) Government of Wales Act 2006, and s 5(6) Northern Ireland Act 1998, each of which emphasises that the powers of the devolved legislatures do not affect the power of the UK Parliament to make laws for Scotland, Wales, or Northern Ireland.

Key Term: parliamentary sovereignty
The doctrine that Parliament can make or unmake any law whatever, and no person or body is recognised as having the right to override or set aside the legislation of Parliament.

In constitutional theory, therefore, Parliament could even abolish the devolved legislatures by ordinary statute—though in practice this would require a referendum and carry significant political and legal risk.

Parliamentary Procedure in Practice

Westminster’s capacity to legislate in devolved areas is exercised with restraint, in recognition of the established constitutional settlement and intergovernmental relations. There is a shared expectation—supported by constitutional convention but not by law—that devolved matters in practice remain for devolved legislatures. In rare cases, such as for implementing UK-wide initiatives or in response to emergencies, Westminster may legislate across the UK in areas of devolved competence.

The Sewel Convention

The core of the relationship between Westminster and the devolved institutions is the Sewel Convention, which recognises that "the UK Parliament will not normally legislate with regard to devolved matters without the consent of the relevant devolved legislature".

Key Term: Sewel Convention
The constitutional convention that the UK Parliament will not normally legislate on devolved matters without the consent of the devolved legislature. The convention originated in Scotland and was later mirrored in Wales and Northern Ireland.

Key Term: legislative consent motion (LCM)
A formal motion passed by a devolved legislature, consenting to Westminster legislating in a devolved area.

This convention, though now given some statutory recognition (e.g., s 28(8) Scotland Act 1998; s 2 Wales Act 2017), remains a political and not a judicial constraint. The Supreme Court has confirmed that the Sewel Convention is not legally enforceable—the obligation is not justiciable in the courts (see R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5).

The Sewel Convention does, however, provide a powerful political safeguard. The process of seeking consent—through an LCM—cements intergovernmental cooperation, but cannot ultimately constrain Parliamentary sovereignty. The circumstances "not normal" are undefined and, in practice, have become contentious when the devolved legislatures refuse consent on matters perceived to affect devolved powers (notably in Brexit-related legislation).

Practical Application

It is common for LCMs to be used to allow Westminster to pass UK-wide legislation with devolved content where all parties agree this is more efficient. However, refusal of consent (as occurred with certain Brexit legislation) has not prevented Westminster from proceeding, highlighting the supremacy of Parliament over the operation of convention.

Worked Example 1.2

Scenario: The UK Parliament legislates for a nationwide environmental policy, overriding divergent approaches in Scotland and Wales, both of which have refused consent via LCM.

Answer:
The UK Parliament remains sovereign and its statute prevails. While the refusal of consent would generate constitutional and political controversy, it does not render legislation invalid or challengeable in the courts. The only formal consequence is political.

The Role of the UK Supreme Court in Competence Disputes

When the validity of devolved legislation is in question—either before or after Royal Assent—the UK Supreme Court acts as the final arbiter. Law officers such as the Advocate General (Scotland), Attorney General (UK), or Counsel General (Wales) may refer a Bill for review before Royal Assent. After enactment, ultra vires challenges can be judicially reviewed. The scope of the court's inquiry is limited to determining whether statutory powers have been exceeded, not to reviewing the policy merits of the Acts in question.

Key Term: reference to the Supreme Court
A formal process whereby a law officer refers a proposed or passed Bill from a devolved legislature to the UK Supreme Court for a ruling on legislative competence.

The Supreme Court will interpret the scope of reserved matters as a question of statutory construction. In practice, the court has interpreted these provisions purposively, mindful both of legislative intention and the evolving context of devolution.

Worked Example 1.3

Scenario: The Scottish Parliament passes an Act limiting the sale of tobacco; the UK Government’s Advocate General challenges the Act as relating to consumer protection, a reserved matter.

Answer:
The Supreme Court considers the purpose and effect of the Act. If the main purpose is to protect public health (a devolved matter) and any effect on consumer protection is incidental, the Act may be upheld. The court looks to the main aim and operation of the provision, applying established principles of statutory interpretation.

The Impact of Brexit

The withdrawal of the UK from the EU has significantly changed the constitutional situation for devolved powers. Previously, the devolution settlements prevented devolved institutions from legislating contrary to EU law (except on excepted matters for Northern Ireland). Following Brexit:

• Many policy areas previously regulated at EU level (such as agriculture, fisheries, environmental regulation) fall within devolved competence, but UK-wide frameworks are needed to manage cross-border effects.
• The UK Internal Market Act 2020 was enacted to maintain the integrity of the UK's internal market. The Act introduces principles of mutual recognition and non-discrimination for goods and services, thereby preventing individual jurisdictions from enacting certain regulatory barriers to trade within the UK.
• The effect is to limit, in practice, the ability of devolved governments to enact divergent standards when these would restrict the import or sale of goods and services lawfully traded elsewhere in the UK.
• The Northern Ireland Protocol, as part of the post-Brexit settlement, maintains regulatory alignment with certain aspects of EU law for Northern Ireland, creating distinct rules and jurisdictional complexities for the Assembly and Executive in those areas.

Key Term: uk internal market act 2020
UK legislation which establishes rules to ensure the unhindered trade of goods and services between the nations of the UK, even after divergence of regulatory powers as a result of Brexit.

The allocation of repatriated powers from EU bodies has triggered conflict between the devolved and central governments, with disputes over which policy areas should be coordinated UK-wide and which should fall under devolved legislative authority. The introduction and operation of "common frameworks" are part of this negotiation.

Worked Example 1.4

Scenario: After Brexit, Wales enacts food safety regulations stricter than those in England. An English producer challenges a Welsh ban on the sale of their goods.

Answer:
Under the UK Internal Market Act 2020, goods lawfully produced and marketed in one part of the UK (England) must generally be recognised and permitted for sale elsewhere (Wales), unless a statutory exception applies. This restricts Wales’ practical ability to enforce divergent standards where mutual recognition applies.

Fiscal Devolution and Funding Arrangements

Devolved governments exercise varying degrees of control over taxation and public expenditure:

• Scotland has significant revenue-raising powers, including the authority to set its own income tax rates and local taxes, as well as borrowing powers.
• Wales now exercises limited tax and borrowing powers, including control over certain property and land taxes, and partial income tax powers.
• Northern Ireland has some distinct fiscal arrangements (notably in corporation tax), but more limited devolution of other taxes.

Devolved government expenditure is primarily funded by block grants from the UK Treasury, calculated by the Barnett Formula. This formula adjusts funding in accordance with changes in public expenditure in England, relative to population.

Key Term: Barnett Formula
The Treasury’s method for determining the size of block grants to devolved administrations, based on relative population and English expenditure in devolved areas; subject to criticism for not reflecting need.

Debate continues about whether the Barnett Formula is fit for purpose, with devolved administrations often calling for reform to better reflect demographic and social need.

Intergovernmental Relations and Dispute Resolution

Collaboration between the devolved administrations and the UK Government relies upon both formal structures and informal relationships.

• The Joint Ministerial Committee (JMC) is the principal forum through which UK and devolved government ministers coordinate, discuss shared interests, and resolve differences.
• Since Brexit, further structures have been created, such as the Intergovernmental Relations Review, along with issue-specific intergovernmental forums.
• Where disputes arise (e.g., over funding, the implementation of common frameworks, constitutional reform), these are primarily handled through political negotiation and agreement. The Supreme Court is rarely the forum for dispute resolution except where statutory competence is directly at issue.

Key Term: Joint Ministerial Committee (JMC)
A standing committee comprising UK and devolved government ministers, providing a forum for discussion of issues with cross-jurisdictional impact.

Disputes not resolved through dialogue may prompt legislative or, in rare cases, judicial intervention, especially where devolved competence or fundamental constitutional principles are at stake.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Devolved institutions derive their legal authority from Acts of Parliament and have powers strictly defined by statute.
• The distinction between reserved, excepted, and devolved matters determines the limits of legislative competence.
• The UK Parliament remains sovereign and retains the power to legislate on any matter, including those devolved.
• The Sewel Convention, although recognised in statute, is a political and not a legal limitation on Westminster's legislative power over devolved matters.
• Disputes regarding legislative competence or non-compliance with statutory limits are resolved by the UK Supreme Court.
• Brexit has profoundly affected the distribution of powers, especially through the repatriation of policy areas from the EU and the impact of the UK Internal Market Act 2020.
• Devolved governments vary in fiscal autonomy; funding is determined via the Barnett Formula, which is subject to ongoing debate.
• Intergovernmental relations are principally managed by political mechanisms, including the JMC, with legal processes as a last resort where competence is in question.
• The status of devolved institutions is shaped by a combination of statutory law and constitutional conventions, reflecting the evolving nature of the UK's uncodified constitution.

Key Terms and Concepts

• devolved institution
• primary legislation
• legislative competence
• reserved matters
• excepted matters
• ultra vires
• parliamentary sovereignty
• Sewel Convention
• legislative consent motion (LCM)
• reference to the Supreme Court
• uk internal market act 2020
• Barnett Formula
• Joint Ministerial Committee (JMC)