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1. Which Act created the Scottish Parliament and the Scottish Executive? How, according to that Act, do the institutions in Edinburgh relate to the sovereign UK Parliament?
The Scottish Parliament and Executive were created by the Scotland Act 1998. Section 28(7) of this Act provides that the Act ‘does not affect the power of the Parliament of the United Kingdom to make laws for Scotland’, thereby preserving the sovereignty of the Westminster legislature.
2. Explain the English Question. What measures have been introduced to seek an answer to this question?
The English Question, or West Lothian Question, centres on the lack of an English-specific institution. Whilst, within the realm of devolved matters, legislatures and governments in Scotland, Wales, and Northern Ireland have the power to make laws and decisions for their respective areas, in England it is the UK Parliament and government that fulfils this role. The UK Parliament and government, however, also include MPs and (potentially) ministers from Scottish, Welsh, and Northern Irish constituencies. By way of a solution, a change to the House of Commons Standing Orders was introduced in October 2015. This created a Legislative Grand Committee which permits MPs for English constituencies to debate and vote on laws affecting only England.
3. What was the main difference between the initial devolutionary settlements in Wales and Scotland? How have they changed since 1998?
Whilst the devolution settlement in Scotland saw the creation of a Parliament – with primary law-making powers – and a government, both operating within a reserved-powers model, when the settlement with Wales was first established, the Welsh Assembly exercised only executive and secondary law-making powers. All primary legislation for Wales was still passed by the UK Parliament. As such, the Welsh Assembly could be described as a statutory corporation. It was created by statute and could only do those things set out in statute. The Assembly also did not have a separate government, all executive authority being exercised by the 60-strong assembly as a whole.
Over the years, notably through reforms in 2006 and 2017, the Welsh devolution settlement has come to more closely resemble the Scottish model. The Welsh Assembly was granted primary law-making powers in 2006, at the same time as a separate government was established. Then, in 2017, a reserved-powers model replaced the conferred-powers model that had operated since 2006.
4. Explain the legal distinction between the reserved powers model and the conferred powers model.
The conferred powers model, prominent in Wales between 2006 and 2017, was rooted in presumption that all power was vested in the Westminster institutions unless expressly devolved – or conferred – on the Welsh Assembly and Government. The Welsh institutions, therefore, could only act in respect of the powers expressly devolved. The reserved powers model, now prominent in Scotland, Wales and Northern Ireland, is effectively the opposite. All power is presumed to be devolved to the regional institutions, unless expressly reserved for Westminster. The relevant institutions in Scotland, Wales and Northern Ireland are permitted to Act in a range of matters, provided that they do not err into matters expressly reserved for Westminster.
5. What does section 1 of the Northern Ireland Act 1998 provide?
Section 1 of the Northern Ireland Act 1998 makes provision for the Good Friday Agreement, stating that ‘Northern Ireland … remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll’.
6. What is the significance of the Northern Ireland Protocol?
The Northern Ireland protocol is a part of the Brexit Withdrawal Agreement which sees certain EU customs rules remaining in force in Northern Ireland, effectively creating a hard border in the Irish Sea and between Northern Ireland and the rest of the UK. The protocol is given legal expression in the UK Internal Market Act 2020.
7. What is the Sewel Convention? Is the UK Parliament legally prevented from passing laws for Scotland, Wales and Northern Ireland in areas not reserved to Westminster?
The Sewel Convention is a political rule which provides that the UK Parliament ‘will not normally’ legislate for Scotland, Wales and Northern Ireland in matters devolved to the regions without the consent of the relevant devolved legislature. It is a convention, and thus not a legally enforceable rule, that seeks to protect the realm of matters devolved to Scotland, Wales and Northern Ireland without undermining the legal sovereignty of Parliament.