Chapter 10 Answer guidance

Devolution and Parliamentary Supremacy

What is the history of devolution? When did ‘devolution’, as currently understood, first appear on the political landscape?

Recall that devolution is the concept of devolving powers from one supreme political institution to a subordinate body. This can be a way to ensure that no single institution accumulates too much power, but devolution may also make it possible for different people to remain together in a state that retains popular legitimacy, while allowing peoples to be governed in a manner in keeping with their traditions and identities.
Although the term ‘devolution’ was not used, one example of reference to ‘devolved’ administrations comes from a speech delivered by Edmund Burke to the House of Commons in 1774. Burke was speaking about taxation in the American colonies – can you remember what Burke was warning Parliament? Review section 10.3.1 for a reminder.
What did the American example illustrate about the political consequences of a sovereign Parliament enforcing a legal right contrary to the wishes of a subordinate legislature and its electorate?
When did the term ‘devolution’ begin to be used? What do you remember about the attempts of the UK government to introduce a form of self-government for Ireland from 1886 onwards? See section 10.3.2 for help.

What are the different ways of conferring power? In what way is legislative devolution more advanced than other forms?

Think about the differences between the terms ‘legislative’, ‘executive’, and ‘administrative’. What do you remember about the meaning of these terms and what they encompass?
What type of devolution involves the establishment of representative offices of central government in regions or nations within its territory?
What type of devolution involves devolving the power to create execute, and administer detailed policies within the general framework legislation enacted by the supreme Parliament?
Contrast this with devolving the power to enact legislation and to create, execute and administer the policy that flows from it once formed. What would this be called?
In a system based on parliamentary sovereignty, conferring power on a devolved institution to allow it to pass primary legislation and to execute and administer the policy is the most advanced form of devolution. Do you understand why it is more advanced than other forms?
If you need to refresh your memory about the different ways that power can be devolved, read section 10.2.

What is the history of devolving power to Scotland, Northern Ireland, and Wales? What are the legislative powers of the three institutions?

How did the process of establishing the devolved bodies begin in the UK? What happened after the 1997-1998 referenda?
Can you name the so-called Devolution Acts? Hint: they are named after each country.
The Acts of Union of 1706 and 1707 set out the terms of the voluntary partnership between England and Scotland, and Scotland retained some influence over its domestic affairs. For how long has Scotland had its own executive office? What changed with Scottish devolution?
How does the Scotland Act 1998 set out the legislative powers of the Scottish Parliament? Does the Act set out the fields in which the Scottish Parliament has legislative competence or the fields in which it does not have competence? (Pay attention to sections 28 and 29 Scotland Act 1998, set out in section 10.4.3). What was the effect of the Scotland Act 2016?
How does the history of Wales’ union with England differ from Scotland’s? Was there as much appetite for Welsh devolution as for Scottish devolution? Think about the events surrounding the 1979 Welsh referendum. When and why did devolution in Wales come back on the political agenda?
How did the devolution settlement introduced by the Government of Wales Act 1998 differ from the one introduced by the Scotland Act 1998? Was it more extensive or more limited? What changed with the Government of Wales Act 2006 and then the Government of Wales Act 2017? (See section 10.5.4).
What have you understood about Northern Ireland’s difficult history? In particular, what were ‘the Troubles’ and what was the significance of the Good Friday Agreement of 1998?
What powers did the Northern Ireland Act 1998 give to the Northern Ireland Assembly and how do these compare to the settlements introduced in Scotland and Wales?
For help with any of these points, review section 10.4, 10.5 and 10.6.

Why do some want to see the establishment of an English Parliament?

What do you understand about the ‘the West Lothian question’ and ‘the English question’?
What is controversial about a Bill that has no effect on one of the devolved countries being passed only because of the support of MPs representing constituencies in those countries? Think about the example of the Higher Education Bill in 2004 (explained in section 10.7). How did ‘English votes for English laws’ change the legislative process?
What do you understand about the Barnett formula and how are financial arguments used by those who want to see the establishment of an English Parliament? Consider, for example, the arguments by Frank Field MP in section 10.7.

What effect has devolution had on the doctrine of parliamentary supremacy, both legally and politically?

Remember that devolution can be thought of as a way of lending power to another institution. The devolved institution gets to use the power as lent to it, but there is always the possibility (in legal terms at least) that the power may have to be given back to (or may be taken back by) the lending institution.
Did the Westminster Parliament give up its overall legislative supremacy under any of these devolution settlements? Or could it choose to reclaim all devolved powers?
Can laws passed by a devolved legislature be reviewed by courts, for example on the grounds that the law falls outside the legislature’s competence? Recall the example of Axa General Insurance in section 10.4.
How could you draw from the experience of devolution in Northern Ireland to evidence the retention of supremacy by the Westminster Parliament? Think about the political problems leading to the suspension of the Northern Ireland Assembly on four occasions between 2000–2007. Review section 10.6 if you are unsure how to draw this link.
Remember that political considerations play a part. Think about the example of the Sewel Convention, explained in section 10.8.

Does Brexit make any difference to your views on devolution?

For some commentators, Brexit has been a watershed in the relationship between the devolved nations and the UK Parliament as the electorates in some of the devolved nations voted to remain within the EU and yet the UK withdrew from the EU even given this.
This question has been designed to ask you to consider these relationships, the distinction between matters that are viewed as reserved to the Westminster Parliament and UK executive and the matters reserved to the devolved nations legislatures and executives.
The question also allows you scope to consider parliamentary supremacy, the separation of powers including the use of Henry VIII clauses to update retained EU law.
It may be helpful to begin with parliamentary supremacy and the Acts that give rise to the devolution settlements, which note that the UK Parliament retains the right to make any law (the UK is not a federal state).
You may also wish to consider the UK’s relationship with the EU, which was a matter of UK law addressed via both statute (domestic realm) and the royal prerogative to enter into treaties with other nations (international realm).
You may then wish to consider the devolution settlements and the powers reserved to home nations and those retained by the UK Parliament.
The question then gives you scope to address each devolved nation in turn, if you wish, or to answer the question on an issue by issue basis rather than a home nation basis. Your approach may depend on whether you think there are substantial differences between the experiences of those in each of the nations or whether you consider that issues of principle are foundational. For example, some people may prefer to focus on the key issue of Northern Ireland and its ongoing if limited relationship with EU law so as to prevent the need for a hard border between Northern Ireland and Ireland. Other people may wish to focus on the extent to which the UK has asserted its authority over the home nations and what that means for ongoing understandings of devolution.