Status of devolved institutions - Relationship between devolved institutions and Westminster

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Overview

The connection between the UK's devolved institutions in Scotland, Wales, and Northern Ireland and the Westminster Parliament plays a vital role in British constitutional law. Understanding this intricate mix of legislative powers, political norms, and judicial oversight is essential for SQE1 FLK1 exam candidates. This article delves into the devolution framework, covering the distribution of powers, legislative limits, and the interactions that shape governance in the UK.

Devolution and the Constitutional Framework

Devolution in the UK presents a distinctive approach to decentralized governance, balancing regional independence with national considerations. While Westminster maintains ultimate sovereignty, regional parliaments and assemblies enjoy notable powers.

The Constitutional Basis of Devolution

The legal framework for devolution is built on key parliamentary acts:

  • Scotland Act 1998 (amended in 2012 and 2016)
  • Government of Wales Act 1998 (replaced by the Government of Wales Act 2006, amended in 2017)
  • Northern Ireland Act 1998

These statutes outline the powers allocated to each nation, creating a system of asymmetrical devolution where each devolved body holds varying levels of autonomy.

Reserved Powers and the Devolution Arrangement

The idea of reserved powers is central to the UK's devolution model. Under this system:

  • Westminster maintains exclusive control over areas like defense, foreign affairs, and macroeconomic policy.
  • Devolved bodies manage powers not explicitly reserved, such as health, education, and local governance.

This setup engenders ongoing negotiation and collaboration between national and regional governments.

Legislative Competence and Constitutional Challenges

The doctrine of legislative competence defines the boundaries of devolved powers, determining the extent to which regional bodies can legislate within their areas of authority.

Defining Legislative Competence

Legislative competence covers:

  1. Subject matter jurisdiction: The areas in which a devolved body can legislate.
  2. Territorial extent: The geographical reach of legislation.
  3. Compliance with EU law and the European Convention on Human Rights (ECHR).

Supreme Court's Role in Overseeing Competence

The UK Supreme Court plays a vital role in interpreting and enforcing legislative competence. Notable cases include:

  • AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46: Supported the Scottish Parliament's ability to legislate on civil liability for asbestos-related conditions, highlighting a broad interpretation of devolved powers.
  • The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill [2018] UKSC 64: Indicated the limitations of devolved competence related to Brexit, as certain provisions exceeded Holyrood's powers.

The Sewel Convention and Legislative Consent

The Sewel Convention, partly codified in the Scotland Act 2016, dictates that Westminster should not normally legislate on devolved matters without the relevant devolved legislature's consent. Though not legally binding, it holds significant weight in maintaining constitutional balance.

Key aspects of the Sewel Convention:

  • Operates through Legislative Consent Motions (LCMs) in devolved parliaments.
  • The Supreme Court in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 affirmed its non-justiciable nature, highlighting its political significance.
  • Brexit has challenged this convention, with legislation like the European Union (Withdrawal) Act 2018 passing without Scottish Parliament consent.

Impact of Brexit on Devolution

Brexit has deeply affected the devolution arrangement, requiring adjustments in power distribution and intergovernmental relations.

Reassignment of EU Powers

The withdrawal from the EU has returned powers previously managed at the EU level, raising questions about the division of these powers between Westminster and devolved entities.

Key developments include:

  • Establishment of UK-wide frameworks in areas like agriculture and fisheries.
  • Disagreements over the UK Internal Market Act 2020, which centralizes some repatriated powers at Westminster.

Case Study: Post-Brexit Agricultural Policy

The handling of agricultural policy post-Brexit showcases the complexities of governance:

  1. Pre-Brexit: Largely guided by the EU's Common Agricultural Policy.
  2. Post-Brexit: While agriculture is devolved, the need for UK-wide standards has led to negotiations on a unified framework.
  3. Tensions: Devolved bodies have raised concerns about Westminster's approach, particularly concerning the UK Internal Market Act's influence on their ability to set separate agricultural standards.

This illustrates the challenge of balancing a cohesive UK-wide approach with respect for devolved authority in a post-EU landscape.

Fiscal Devolution and Financial Arrangements

The financial ties between Westminster and devolved institutions are vital for policy autonomy and accountability.

Different Levels of Fiscal Power

Each devolved nation holds distinct fiscal powers:

  • Scotland: Broad tax-raising capabilities, including partial control over income tax rates and bands.
  • Wales: More restricted tax authority, including Welsh income tax rates and land transaction taxes.
  • Northern Ireland: Control over corporation tax rates, subject to certain conditions.

The Barnett Formula and Block Grants

The Barnett Formula is central to devolution financing, determining block grants for devolved administrations. However, its fairness and applicability face scrutiny in light of growing fiscal devolution.

Intergovernmental Relations and Dispute Resolution

Sound governance within the devolution system requires strong intergovernmental cooperation and conflict resolution mechanisms.

Joint Ministerial Committee (JMC)

The JMC serves as the main coordination platform between the UK government and devolved administrations. Its effectiveness has been debated, especially amid Brexit-related tensions.

Dispute Resolution Mechanisms

Current dispute resolutions between Westminster and devolved bodies rely heavily on political negotiation. Calls have been made for more structured mechanisms, possibly involving independent arbitration or an expanded role for the courts.

Conclusion

The interaction between devolved institutions and Westminster is a dynamic facet of UK constitutional law. For SQE1 FLK1 exam candidates, understanding this complex relationship is crucial. Key areas include:

  • The constitutional and legal grounds of devolution
  • Legislative competence and its judicial understanding
  • The function of conventions, particularly the Sewel Convention, in managing government relations
  • Brexit's influence on the devolution landscape
  • Financial frameworks that underpin devolution

As the UK continues to face Brexit's challenges and potential constitutional reforms, the ability to apply these principles to new situations will be critical for success in the SQE1 FLK1 exam and future legal practice.