1. Devolution and the constitution Government and Politics AS GP2 Governing Modern Wales

2. This lesson  This session will:  Explore the extent to wish devolution has impacted on the UK constitution  Identify how flexible to the UK constitution is  Examine the processes constitutional settlement in Wales

3. Devolution and the UK The UK is divided constitutionally into two types of legislatures:  Sovereign Parliament (Westminster)  Non sovereign Parliament/Assemblies (Wales, Northern Ireland and Scotland) All of these bodies, however, have the power to make primary laws which receive royal assent as part of the UK constitutional operation.

4. Devolution and the UK A Memorandum of Understanding (the main intergovernmental agreement) sets out the convention on the UK parliament and the devolved bodies:Memorandum of Understanding The United Kingdom Parliament retains authority to legislate on any issue, whether devolved or not. It is ultimately for Parliament to decide what use to make of that power. However, the UK Government will proceed in accordance with the convention that the UK Parliament would not normally legislate with regard to devolved matters except with the agreement of the devolved legislature. The devolved administrations will be responsible for seeking such agreement as may be required for this purpose on an approach from the UK Government. (para. 14)

5. Devolution and the UK  In Scotland the law sets out what the Scottish parliament can do, whilst in Wales it sets out what it can do  This means that the Scottish Parliament has more legislative scope that the Welsh Assembly  Exactly what each body can do is set out in their establishing Acts – The Government and Scotland Act (1998) and The Government and Wales Act (1998)  In and 2006 and 2011 further Acts increased the Welsh Assembly’s powers

6. Devolution and the UK  Exercise 1 Supreme Court to decide on asbestos NHS treatment cost recovery bill  Questions  What new Welsh law has been referred to the supreme court and why?  What makes Welsh Bills distinct in their name from Westminster ones?

7. Devolution and the UK  In February 2015 the Supreme Court rejected the The Recovery of Medical Costs for Asbestos Diseases (Wales) Bill  The Bill, had been introduced by the Pontypridd AM Mick Antoniw - a former solicitor representing patients with asbestos related diseases -  It proposed that negligent companies through their insurers at the time reimburse the NHS for any medical costs incurred when treating their former employees who had been exposed to asbestos.  The Supreme Court ruled on 9 February 2015 that the Welsh Assembly lacked the legislative competence to enact the legislation.

8. Devolution and the UK  The Supreme Court ruled on 9 February 2015 that the Welsh Assembly lacked the legislative competence to enact the legislation.  The Supreme Court said that Welsh ministers do have explicit powers to set and recover prescription charges, as set out in the NHS (Wales) Act.  However, the Assembly has no powers to 'raise monies generally' - especially from third parties - for the health service. Therefore it was acting and ultra vires.

9. Devolution and the UK  Exercise 2 How does devolution impact on the constitution?  Read through the slides and write three ways that the constitution isn’t affected   Write three ways that it is affected

10. So how does devolution affect the constitution?  There are two ways of looking at how devolution affects – or fits into – the UK’s constitution.  On one view, devolution – for all that it is significant in practical and political terms – does not affect the fabric of the constitution in any substantial way.  Before the introduction of devolution, Tony Blair tried to reassure sceptics by saying that, constitutionally, devolved governments and legislatures would be no different from parish councils.  Blair as bodies like the Scottish Government and Scottish Parliament although nothing like parish councils in terms of the amount of power they wield; they are, at the end of the day, legally inferior to the UK (Westminster) Parliament.

11. So how does devolution affect the constitution?  That is because the UK Parliament is, in constitutional theory, “sovereign”: as A.V. Dicey, the influential Victorian legal commentator, put it, the UK Parliament can “make or unmake any law”.  And so, because devolution was brought about by legislation enacted by the UK Parliament, the institutions thereby created are not the constitutional equals of that Parliament.  Rather, the devolved institutions owe their existence to – and can therefore have their powers altered, and can even be abolished by – further legislation made by the UK Parliament.

12. So how does devolution affect the constitution?  This first “reading” of the British constitution states that nothing has changed  This is comforting to some, ridiculously formalistic to others.  It is comforting in that it allows us (if we so wish) to pretend that nothing has altered: that the sovereignty of the UK Parliament – long regarded as the axiomatic (self-evident) feature of the British constitution – continues unchanged.  This unchanged Parliamentary sovereignty model, however, has been challenged

13. So how does devolution affect the constitution?  To say that the UK Parliament is sovereign and can therefore unilaterally interfere with, even rescind, the devolution system is to make a statement that is in practice theoretical as to be practically meaningless.  Political reality – as distinct from constitutional theory – has moved on.  Devolution is already an ingrained feature of the British constitution; it is not practically possible for politicians at Westminster to play around with it as they wish.  Each of the devolved bodies has been established by referendum and therefore it has become a constitutional convention that they can only be dissolved in the same way, rather than simply by a new statute.

14. So how does devolution affect the constitution?  This presents us, then, with two contrasting readings of the constitution: a theoretical one and a more practical one.  The disjunction between these two readings reveals a gap between how we think about the constitution in theoretical terms and how the constitution actually works today.  This might seem odd, but in fact the British constitution is full of this sort of thing. Take the powers of the monarch. In theory, no Bill can become an Act of Parliament without her agreement: but in reality, the monarch assents – and is expected to assent – to legislation as a matter of course.

15. So how does devolution affect the constitution?  By applying this sort of “double think”, it is possible to preserve the dignity of the monarch (by saying that she is legally powerful) while ensuring that democratic principles apply (because in practice the monarch does not exercise her power to veto legislation).  This might be regarded as the best of both worlds: a constitution that holds to its traditions, on the one hand, while working in a way that is fit for modern circumstances, on the other hand.  Wales is also trying to head towards the reserved power model that is in Scotland. This states that Wales can legislate over whatever issues it wants except those reserved for Westminster such as defence.

16. Sewell Motion  If the Westminster Parliament passes a law in an area which has been devolved to them they can incorporate the law into their nation but without recreating the law themselves.  This is referred to after Lord Sewell who introduced the policy in the House of Lords in 1998.  The UK Parliament does not make laws on areas that the devolved nations have the power to already make laws on without their consent.  This is called a Sewell motion but why should it be meeded?  It is useful to the devolved governments because they can take ready made legislation that does not need to take up their own legislative time

17. So how does devolution affect the constitution?  Devolution, however, is in tension with that traditional approach in not one, but two ways.  First, it institutes a principle – namely, respect for the autonomy of individual nations within the UK – that sits uncomfortably with the idea that the UK Parliament can legislate in any way that it pleases.  The principle of devolved autonomy cannot be legally accommodated as a truly fundamental constitutional principle, because no principle, on the traditional view, can restrict the UK Parliament’s power to do what it likes.

18. So how does devolution affect the constitution?  Instead, the autonomy of devolved nations can be accommodated only as a legally non-binding principle that the UK Parliament is expected – but not, at the end of the day, legally obliged – to respect (just as the Queen is expected, but not legally obliged, to assent to Bills).  Second, however, as well as giving rise to a principle that that is in tension with the traditional view of the constitution, devolution also introduces a model of constitutionalism that is in tension with that view.  Unlike the UK Parliament, the devolved legislatures – the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly – are not sovereign.

19. So how does devolution affect the constitution?  Instead, their powers are limited – both by the UK legislation granting powers to the devolved legislatures and by fundamental constitutional principles. The latter point is especially important.  In the case of AXA General Insurance Ltd v The Lord Advocate, the UK Supreme Court was called upon to decide whether the Scottish Parliament was limited by such principles – and said that it was.  Exercise 3 AXA General Insurance Ltd v The Lord Advocate 2011  What did the case state about the way the courts can review the legislation of both Sovereign and non sovereign legislatures?

20. Exercise 3 AXA General Insurance Ltd v The Lord Advocate 2011  Answer  Giving one of the leading judgments, Lord Hope pointed out that there was always a risk that a legislature controlled by a powerful government might be tempted to ignore such principles. It was therefore appropriate for courts to have a reserve power to intervene if such a situation came to pass. And although Lord Hope was talking about the Scottish Parliament, his argument is no less applicable to the UK Parliament.

21. Devolution and the constitution  Devolution, then, places the traditional view – according to which the UK Parliament is sovereign – under particular pressure.  It introduces a new category of things – namely, interfering with devolved autonomy – that the UK Parliament cannot actually do (whatever the theory tells us).  But it also introduces a different sort of constitutional model, under which the powers of the devolved legislatures – unlike their UK counterpart – are limited by law.  This does not necessarily, in itself, get rid of the traditional view as it applies to the UK Parliament; but, at the very least, it invites critical scrutiny of that view.

22. Devolution and the constitution  The creation by a sovereign UK Parliament of legally limited devolved legislatures is therefore something of a paradox.  It might even be said to be hypocritical.  If the devolved legislatures are bound by the rule of law, why shouldn’t the UK Parliament be similarly bound?  But if this is hypocrisy, it is nothing new: after all, the UK bequeathed written constitutions with legally limited legislatures to many former colonies.  Perhaps legislators in the UK Parliament uniquely lack any need for constitutional law as an ultimate restraint.

23. Exercise 4 How flexible is the UK constitution with regard to devolution?  Using your notes and the internet see if you can answer the question and at the same time give some examples of its flexibility  You may also wish to refer back to: http://www.politicscymru.com/en/cat2/article9/

24. Exercise 4 How flexible is the UK constitution with regard to devolution?  Note that there is no codified constitution so the main advantage of the UK constitution is that it is already flexible  Note there has been considerable transfer of powers to the devolved bodies, although not sovereignty it is form of delegated sovereignty  That the devolved bodies have been constitutionally entrenched by referendums  That the relationship between the devolved bodies and Westminster continually evolves and is governed by statutes, the Supreme Court and governmental memorandums of understanding  That although legislation provides an outline of the powers of each legislature this varies from nation to nation, which means that the UK has been described as quasi federal in nature

25. Exercise 4 How flexible is the UK constitution with regard to devolution?  The unequalness of the devolution settlement means that there is a problem with England which has no separate body to legislate for its aside from the Westminster Parliament meaning that Westminster has also become the English Parliament  There has been an asymmetrical form of devolution in the UK, with Scotland and Northern having and wider legislative powers than the Wales, Scotland also currently has more tax raising powers than the other devolved bodies, although this may chance

26. Exercise 5 The Government of Wales Acts  What are your answers?