It is now 20 years since powers were devolved from Whitehall and Westminster to new legislative and executive bodies in Scotland, Wales and Northern Ireland. In that time, devolution has evolved significantly, radically changing the relationship between different parts of the UK. Meanwhile, in England, attempts to devolve powers from the centre to the regions have had only limited effect. John Cooper looks at the state of devolution in the UK today, the impact of Brexit, and whether there is any future for English devolution.
Michael Luckman: Well, hello everyone and welcome to the first webinar of our Spring ThinkHouse programme.
It is fair to say when we ran our Spring ThinkHouse programme last year, which I think was our first fully on-line programme, although it was well received I did not think we would think it would become a habit one year later.
Some things have changed, I do not need to show you the fire escapes any more or ask you to set your mobile phones to stun for the Trekkies amongst you. But there is some housekeeping though. This is a webinar and our speaker today will present first with slides and I will marshal all questions for afterwards. Please feel free to raise questions on the way through, as they occur to you. They will come to me direct if you use the question and answer button at the bottom of the screen and I will sort them out to ask our speaker the questions at the end.
However, also some things remain the same. We aim to deliver our loyal audience high quality speakers covering a mixed diet of both the regular catch ups and interesting topical subjects that we think will impact your day to day or will be useful in providing a wider context on significant legal trends.
We are living in a world where I think we are very aware that many of the issues we face are global, universal and complex. The most obvious being climate change and pandemic response and yet in the face of these unifying threats we have seen a retrenchment away from internationalism and towards nationalism, exemplified by our own departure from the European Union and until recently of course the US turning away from the Paris Accord and the World Health Organisation. And these issues are playing out on to a more parochial level as countries, principalities and combined authorities argue they might better reflect and serve the needs of their immediate communities over a diluted centralised view whether it is Nicola Sturgeon over Europe or Andy Burnham over Manchester's pandemic response.
This leads to some very interesting questions over who should have political power and how much and the extent to which that power is accompanied by accountability. However, all these debates are too often coloured by emotion, rhetoric and political jingoism and not by a logical and rational analysis of what might actually best serve communities.
Hoping to bring some rationality and understanding to these issues, I would like to introduce you all to John Cooper, one of our Partners who heads up our Public Law and Regulation Team and who is an active blogger too on public law issues.
He is going to talk to us about devolution in the UK which sounds so much safer than the anarchy in the UK mantra of my youth! Over to you, John.
John Cooper: Many thanks Michael and good morning everybody.
So let me outline briefly what we hope to cover today. I am going to deal with this in five subsections. Firstly and just very briefly to ask the question: What is devolution? What do we mean when we talk about it? Secondly to say something about the recent history of devolution in the United Kingdom and then getting into the meat of the session, looking at how devolution works and that means talking mostly about Scotland, Wales and Northern Ireland where there has been substantial devolution to date.
And then to look at the English question, which I suppose I might have titled "How devolution doesn't work" because actually in England there has been incredibly limited devolution and that causes issues that we will explore. And then fifthly and finally, no talk these days is complete without some reference to Brexit and there is some interface between Brexit and devolution, and while I do not want this session to be dominated by that, we will touch upon it very briefly at the end.
So the aim is probably for me to talk for about half an hour, give or take, through these five subjects. At the end of that we will have an opportunity, maybe ten or 15 minutes for questions and then hopefully we can release you slightly early before the end of this. But, in any event, we will have a hard cut-off at half past eleven.
What is devolution?
So moving through the five topics that I have just discussed. What is devolution? Well Michael has already clued that up to some extent. He has said that devolution is a fundamental question about how nation states should be governed. Really raising two sub-questions - at what level within a nation state should political power be exercised? And to whom and how should the holders of that power be accountable? These are big questions and if you look at the way different countries approach to those questions, you will see very different issues arising.
In countries that are created from smaller established political units within relatively recent history. ;Examples of that would be obviously the United States only created at the end of the 18th century and Germany created towards the end of the 19th century. It is always how much power should be transferred from the starting units, the states or the Länder in Germany to the centre, and if you want a slow motion version of that question in operation just look at the European Union where that question of how much should be transferred upwards from existing nation states is the fundamental and contested question of the whole union.
But in countries which started as strong centralised unitary states, France for instance would be a good example of that, the question tends to be viewed from the opposite perspective. How much power should be devolved downwards from the strong central government to local or regional levels? Now the United Kingdom actually is a hybrid state in the sense that its individual component parts have a long history as unified states. ;England for instance is one of the oldest states in the entire western world. It is coalesced in its current form in the 10th century - so over a millennium of England as a unitary nation state.
But the United Kingdom itself, as a construct, is much more recent. England and Wales entered into a union only in the 16th century. Scotland was added in the 18th, Northern Ireland only at the beginning of the 19th and therefore the United Kingdom is a relatively recent, in historical terms, construct and its roots do not always go as deep or have the degree of persistence of permanence as some people might, until quite recently, have imagined them to have. And that is very much at the heart of the way in which the devolution issue has played out politically.
But in recent history, the United Kingdom has been a strong centralised state and therefore the question is fundamentally about the decentralisation of power out of London to somewhere else. How much should that take place? Where should it take place? To whom and in what manner? And as Michael has eluded to, the answer has depended upon powerful forces such as nationalism rather than on rational administrative choices about what the state would best look like if you were to sit down with a blank sheet of paper and design it afresh.
Devolution - the recent history
That is a broad introduction at a very high level to what is devolution. Let us talk a little about devolution's recent history in the United Kingdom. Now, until the Blair Government which commenced in 1997, political power in the UK was incredibly highly concentrated in London. Specifically in the Westminster Parliament as the national legislative assembly and in Whitehall as the national executive centre of Government and the sovereignty of the Westminster Parliament was then, and it is important as we talk about devolution to remember that it remains in spite of devolution, the cornerstone of the UK constitution. So all devolved powers that we will talk about today emanate from the Westminster Parliament and that devolution does not change the underlying fact of parliamentary sovereignty. It is not a dilution of that sovereignty, it exists in conjunction with it.
So you had a very strongly centralised state by the time the Blair Government in 1997 came into power and what the Blair Government did was pass three significant devolution statutes. And some of the younger members of the audience today who mainly know the Tony Blair Government by reference to its long term legacy of Blair's involvement in foreign policy issues, might not realise that in its first term, 1997-2001, it was a hugely reforming Government which passed a whole series of important constitutional statues which have fundamentally changed the way in which the country is governed. These three statutes: the Government of Wales Act; Scotland Act and the Northern Ireland Act, all 1998, were the beginnings of modern devolution of powers out of Westminster and Whitehall and towards these three component territories of the United Kingdom.
Now something interesting then happened that is important, which is that over time devolution tends to become self-perpetuating, it is a progressive process and having created devolved institutions under those 1998 statutes, what followed was a series of further legislation devolving more powers with two fundamentally important acts in Scotland, three in Wales and one in Northern Ireland, in addition to some other pieces of legislation. And what is going on here when you see this progressive tendency over time is that the devolved institutions, having been created and having the backing of a democratic mandate, people who are elected to the national legislatures, have the right to argue in favour of further devolution of powers over time.
So, until these institutions are created in the first place, that is to say prior to 1998, you simply did not have a body within Scotland or Wales or Northern Ireland that could speak with a democratic mandate for the voice of the people of those territories. After that you do and of course inevitably those bodies are seeking more and more powers to be devolved. So this is a progressive process where the original acts or those still in place are being amended progressively over time.
So, that is how it works and here we are getting into the real meat of the discussion and we inevitably have to focus on Scotland, Wales and Northern Ireland as the three places in which this devolution has happened to a significant extent. Once we have talked about that we will come back to the question, or you might say the problem, of England where devolution has not really happened yet.
How it works - Scotland, Wales and Northern
So, all of the devolution settlements in Scotland, Wales and Northern Ireland do two fundamental things. They create a legislature which in Northern Ireland is known as the Assembly and in Scotland and Wales are known as the Scottish Parliament or the Welsh Parliament, the Senedd Cymru and an Executive which in Wales and Scotland is known as the Government but in Northern Ireland is known as the Executive. ;So this is a mirroring of the institutions of Westminster and Whitehall legislature and Executive Government. And the legislature under all of these devolved settlements is in power to pass acts which change the law so primary legislation which can change any law including existing acts of the Westminster Parliament subject only to the constraints that we are about to come onto.
The fundamental thing is that an act of one of those legislatures is not law, it is a phrase used in each of the statutes if it falls outside the legislative competence of the assembly in question and therefore one of the things it is important to ask is "what is that legislative competence?" Because that is what tells you fundamentally how much has been devolved and how much remains un-devolved within the national structure and to fall within the competence of the legislature, the act that is passed must not do any one of these four things that are listed.
So, firstly it must not form part of the law of a territory other than Scotland, Wales or Northern Ireland as the case may be or confer or remove functions otherwise than in relation to those territories and that is a pretty obvious point which is the power of those devolved legislatures is geographically founded by reference to the territories which are covered by the legislatures.
Secondly, an act must not relate to reserved matters. I am going to come onto, in a second, what that means because that is fundamentally important. Thirdly, it must not reach European convention rights and until our exit from European Union it must not breach European Union law. When we come on to talk about Brexit, we will just come back to this question of what has become of the prohibition of breaching European law. It has gone, but there is still the potential for something else to take its place.
And then finally there are a set of other specific statutory restrictions in each of the jurisdictions in question and they vary. Some of them are similar for instance the legislatures cannot amend certain pieces of legislation. For instance, the Human Rights Act 1998. They also cannot amend most of the provisions of the statutes which set them up. But also there are specific restrictions which apply to particular territories. For instance, in Northern Ireland any legislation which is deemed to be politically discriminatory is out with the powers of the legislature which means that it is unlawful and that obviously exists as a very specific reference to the recent historic past of Northern Ireland and that is not mirrored in Scotland or Wales.
So, here we find ourselves having to look at the question of "what are the powers of these legislatures?" It is really important to get down into the detail and look at the specific statutory restrictions which differ from country to country.
Let me come back to the question of reserved matters because that is fundamental. Reserved, here, means reserved to the Westminster Parliament. In other words not devolved and the common theme for all reserved matters, and quoting here from a Supreme Court case, is that they are deemed to be matters in which the UK as a whole has an interest but they should continue to be the responsibility of the UK Parliament at Westminster. May include matters, for instance, which are affected by international treaty obligations and matters that are designed to ensure there is a single market within the United Kingdom for the free movement of goods and services.
So, for example, foreign policy is classically reserved to Westminster and matters like competition law are reserved to Westminster as well. But there is a whole long list of reserved matters in each of the devolved statutes. So a matter that is reserved cannot be legislated for by the Assemblies. But what follows from that is that everything which is not reserved is deemed to be transferred i.e. devolved. So devolution works on the basis that there is a list of things you cannot touch as a devolved legislature.
But anything which is not on the list is considered now to be within your purview and because devolution has been progressive over time, the principal way in which that progression is reflected is in the changing, the narrowing of the list of reserved matters. So, for instance, a lot of taxation is reserved but both Scotland and Wales have now been given powers by the UK Parliament to vary income tax rates and thresholds, and that was not there in the original 1998 legislation that has been a progression over time. As the legislatures in most countries have argued for more powers to do things at a national level. And so the way in which devolution extends as a matter of more is by shrinking the reserved matters. Every time they shrink, the purview of the devolved administrations extends.
Northern Ireland is slightly more complicated. In Wales there are three categories. I think, in Northern Ireland, there are some matters which are known as accepted in Northern Ireland which are what you would call reserved everywhere else. That is to say they are reserved unless the Westminster Parliament were later to transfer them in an extension of devolution. But in Northern Ireland matters which are called reserved are ones which are reserved for the present time but can actually be transferred by secondary legislation so there is a slightly more flexible framework if you find yourself looking at the Northern Ireland legislation.
Now, this thing brings us on to something which is a really interesting facet of devolution. One of the features of acts of the Westminster Parliament is that the Westminster Parliament is considered to have unconstrained rights to legislate. It is partly what we mean when we talk about the sovereignty of Parliament and so you cannot challenge an act of the Westminster Parliament in Court by way of judicial review. The only challenge that you could have made previously was a challenge on the basis that it was inconsistent with EU law because EU law was deemed to have sovereignty under the European Communities Act 1972. But fundamentally, acts of the Westminster Parliament are not challengeable in a Court of Law. Parliament can do what it chooses to do and its accountability exists at the level of democratic accountability and not legal accountability in the Courts.
The devolved administrations function in a completely different way so because acts of the devolved Assembly are deemed not to be law if they stray outside of the legislative competence rights of challenge are available which are not available to be used against Westminster legislation. In short, you can judicially review an act of a devolved Assembly for falling outside the legislative competence and you can ask a Court to strike it down.
So, there was an example of this in a Supreme Court case called Christian Institute and Lord Advocate in which the provisions of The Children of Young People of Scotland Act 2014 which included a provision in which a named person was appointed by and on behalf of the government of Scotland in respect of every child in the country to have some overseeing function in relation to the childhood and the growth of that child, were held by the Supreme Court to be of disproportionate interference with the rights to the protection of family life under Article 8 of the European Convention.
And, as such, those provisions were struck out and declared void and the Scottish Parliament considered going back and trying to find something else of a similar nature that would work but in the end, dropped the proposal. So, actually, this was a very effective form of legal intervention in what, was otherwise, a political process. And, as well as concerned citizens or their representatives judicially reviewing the devolved administrations in respect of legislation, the law officers in each jurisdiction, if they are not sure whether a bill is within the legislative competence, have the right to refer it to the Supreme Court before it receives royal assent. ;And there have been a number of references upwards of that nature in which the Supreme Court has been asked to consider difficult questions about whether a piece of legislation falls within the legislative competence or not.
One of the reasons that you do in fact get difficult questions is that what is reserved is often expressed in very general language leaving the scope of devolved powers open to interpretation. There is a good example of that in another Supreme Court case which relates to the recovery of medical costs from asbestos diseases in Wales. Lets take a look at the way in which the Welsh Government decided to legislate. For cases where employers who were responsible for asbestos related personal injuries and therefore had to pay compensation to their employees were also placed under a statutory duty to make payments to the Welsh Government to fund the NHS costs of treatment for those employees in relation to asbestos.
On the question, as it arose in legal terms, turned on whether the phrase and legislation at that time, the organisational funding of the NHS which was something that was devolved uncovered this power to require employers to make payments to the Welsh Government for the funding of asbestos treatment. ;And I do not know what you think, when you look at that, the answer might be. Would a piece of legislation that did that relate to the organisation of funding of the NHS? On its face, you might say it would, what else is it about, if it is not about ensuring that the NHS is properly funded? It is all about NHS funding at one level.
But in fact the Supreme Court held, by three to two majority, that it was not and then when you looked at what Parliament meant when it originally framed the language of organisational funding of the NHS and it did not mean this kind of effective tax raising power. But it was a narrow split, three to two, and the Court could easily have gone the other way and that shows you the kind of issues that can arise from the very loose definition of the nature of some of the reserved and therefore of the devolved powers and the ample scope that there is even when legislation has been passed in one of the Parliaments or Assemblies, for judicial review challenge of that legislation.
So, effectively, if you are outside your legislative competence the acts become ultra vires and the significance of this is that it emphasises the fact that the devolved Assemblies are creations of the Westminster Parliament and they do not have the same constitutional status as that Parliament. They cannot do anything they like, they can do what they do only because Westminster legislation has empowered them to do it.
And, as I said at the outset, it is really important to bear in mind that Westminster, by devolving that power, has not lost any of its own power. It still retains the right to legislate for Scotland, Wales and Northern Ireland and of course what this raises is the risk of conflicting legislation and a constitutional clash. In particular, it raises the real practical risk of a kind of ping-pong taking place in which the Westminster Parliament legislates for one thing which the devolved assemblies do not like and which they therefore legislate against and which potentially is therefore overturned again by the Westminster Parliament backwards and forwards. So, some practical solution has had to be found to avoid those kinds of really embarrassing constitutional situations.
And the solution is in the form of the convention which is usually known as the Sewel Convention, after the name of the Government Minister who first floated it in Parliament, and it is convention that has been accepted by the UK Parliament and the terms of it are that the UK Parliament will not normally legislate with regard to devolved matters without the consent of the devolved Assembly which has been given by that body in the form of a legislative consent motion.
Now the Scottish and Welsh devolution statutes that convention has actually now been written onto the face of the legislation to try to crystallise it and give it some legal recognition and force. But the important thing to remember is that this is just a political convention about how these bodies will relate to each other in order to try to avoid the fundamental problems that would occur if there was a constitutional clash and they wanted to do completely different things. It is not legally binding and that question was addressed by the Supreme Court in the Miller case, which is one of the pieces of Brexit litigation that found its way to the Supreme Court and the Court was very clear that this is a political convention and not a legal one. The fact that is it is written onto the face of the statutes now does not change that position. And, indeed, in the context of Brexit we have in fact seen the Westminster Parliament overriding the devolved legislatures and doing things that they themselves would not have given legislative consent to as part of our exit arrangements from the EU.
So, in addition, I have talked a lot about the legislatures which have been created in the Scottish and Welsh Parliaments and the Northern Ireland Assembly but all devolution legislation also establishes an Executive or a Government as it is called in Scotland and Wales alongside the legislature. On the model of the Whitehall model of administrative Government. And this makes provision for a First Minister, Departmental Ministers and for supporting departments. Again, very similar to the way in which Whitehall is structured.
And, as well as legislative functions being transferred to the legislatures, you have various Executive functions which have been transferred to Ministers to exercise powers in the devolved territories and that has been front and centre really of the news over the last 12 months or so. As we have seen the way in which the Scottish and Welsh Government and the Northern Irish Executive have responded very differently sometimes to the coronavirus pandemic than the Whitehall administration has responded and each of the different territories of the United Kingdom doing their own thing at different times and in different ways sometimes. That is a situation that has been facilitated by this transfer of Executive power to these national administrations and it has been very obvious in the news over the last 12 months, in ways that perhaps would have gone under the radar for most people before, just how much we now have the ability administratively to do different things between the different component parts of the country.
One of the final things to say about these arrangements is that they have been subject to a declaration of permanence both as to the national Assemblies or Parliaments that have been set up and to the Executives and in Scotland and Wales. ;This declaration of permanence has also now been written on to the face of the legislation. I have provided the wording there, I will not read it out. Its function, of course, is to reflect the fact that, in principle and in law, the Westminster Parliament could simply revoke any of the existing devolution statutes and unwind devolution in its entirety. Nothing to stop it doing so as a matter of law.
But, obviously that is not the political intention and the idea that any of these devolved arrangements are just temporary and could be overridden does not sit well with the underlying political framework. ;So this declaration of permanence has been made as a way of trying to reflect the fact that there is no intention ever to overturn these arrangements and that they are expected to be a permanent part of a constitutional structure but as a matter of law it is not legally binding and just like the crystallisation of the Sewel Convention onto the face of legislation, this should also be regarded as essentially a political convention rather than a legally binding provision.
There is no equivalent in Northern Ireland, which of course is subject to its own very specific arrangements under the Good Friday Agreement, which do not necessarily assume the permanence of the current Northern Ireland arrangements. If the people of Northern Ireland where to for something different. Northern Ireland, as that suggests, is a very different case in many ways.
And the final thing I just want to touch upon while we are talking about Scotland, Wales and Northern Ireland is that the path to devolution is not always entirely smooth and progressive. In Northern Ireland because of its complicated history and the troubles, the Northern Ireland Act 1998 mandates what is called a consociation form of Government where the Government can only exist if it has the involvement of the largest party it is representing. ;Both the Unionist and the Nationalist communities and therefore without a degree of political co operation between Unionists and Nationalists devolution cannot function in Northern Ireland.
And in fact it very quickly broke down not long after the original Northern Ireland Act and it was necessary for Parliament to legislate in 2000 to provide for the suspension of the devolved institutions and circumstances in which that political co operation was no longer working and a restoration of what is called direct rule. In other words a rule from Westminster and Whitehall and these powers have been used briefly in 2000, also in 2001, and for a longer stretch from 2002 to 2007. They were not used more recently when the political co operation again broke down for a number of years and was only restored in the last couple of years.
By that point there really was no enthusiasm for storing direct rule even though these powers existed and that created a situation in which the limits of what Civil Servants operating in Belfast where able to do was sorely tested without any real legal backing of the Northern Ireland Assembly or an elected Northern Ireland Executive and there is an interesting case on that which is dealt with substantively in the Northern Ireland Court of Appeal but also made it briefly to the Supreme Court in a case called Buick on testing what you can do if you have, as a Civil Servant, absolutely no political cover for the decisions that you have to make in order to carry out day to day Government.
The English Question
So we will move on to the English question. So, I have talked a lot about Scotland, Wales and Northern Ireland and we cannot leave it just at that in circumstances in which around 85% of the population of the United Kingdom lives in England and many of the English regions, the North West, the West Midlands for instance have a population and an economy which is comparable to or indeed larger than the largest of the devolved nations, namely Scotland. But the fact is no satisfactory devolution arrangements within England have ever been agreed upon leaving the United Kingdom a very unbalanced entity with devolution out to the geographical periphery, but almost no devolution within the core of England itself.
This minor attempt to resolve an anomaly that is thrown up by devolution and the anomalies that while English MPs at Westminster Parliament can no longer vote on devolved matters within Scotland, Wales and Northern Ireland, it has remained open to Scottish, Welsh and Northern Irish MPs to vote on matters which concerned England alone and that was resolved, at least procedurally, in 2015 by something called English votes for English Laws which goes under the lovely title of "EVEL" and through that the House of Commons introduced a mechanism by which in circumstances in which there is a bill passing though the Westminster Parliament which is concerned only with English issues or which contain certain provisions which are concerned only with English issues.
The Speaker of the Commons can certify it as being an England only bill and then there is an additional stage added into the procedure where, in order to progress, it requires a vote of the England only members of Parliament. Effectively, it allows them a veto against English only provisions. If they do not exercise the veto, it comes back for a vote of the full Parliament including the Scottish, Welsh and Northern Irish MPs. As it stands English votes for English laws has actually been, over the last 12 months starting in April last year, suspended as a result of the pandemic, shows that shows that this is a pretty thin solution to the issue. It is not coded in law, it is simply dealt with as a matter of House of Commons standing orders and it can be changed very quickly. So it does not resolve the fundamental problem, it really papers over the cracks.
But then you have the bigger problem of devolution within England and this takes us back to where we started. England is a country of around 56 million people which is governed centrally from Whitehall and Westminster excepting only a relatively thin and slightly very cash strapped layer of local Government and in other countries of similar size there is a lot more devolution to regional levels at least of a size comparable with say Scotland, Wales and Northern Ireland and that has not happened in England.
The only material level of devolution has been in Greater London itself where there is an authority directly elected Assembly and a Mayor who exercise some material level of devolved powers and the Greater London Authority is responsible for strategic level functions, such as housing, transport and the environment. But elsewhere in England you have no equivalent of that. There have been broad approaches to date as an attempt to introduce some devolution into England and they have been really the brain child of two individuals: John Prescott, who was Deputy Prime Minister of the Tony Blair Government, who brought forward a draft Regional Assemblies Bill 2004. What he wanted to do was create legislatures, regional Assemblies for the different regions of England where those regions are basically administrative structures: the North West, the North East, Yorkshire and Humber, the West Midlands and so on. Top-down imposed administrative structures that do not particularly have any reference to historical Local Government boundaries within England.
That proceeded on the basis that there were going to be a series of Regional Referenda in order to try and validate the introduction of Regional Assemblies. There was only one ever carried out which was in the North East, and the North East voted against it. And just as a matter of historical interest, the North East Regional Assembly referendum was one in which a young Dominic Cummings cut his teeth, campaigning strongly in opposition to the idea of a Regional Assembly. Because it had been rejected in the North East, the political capital really drained out of the project and Tony Blair ceased to be supportive of it and there were no more regional referendums, and therefore the Regional Assemblies Bill actually never made it onto the Statute Book. It was, and remains, adrift.
And then there was a second attempt, more recently, by George Osborne in the era of the Coalition Government. He did actually pass a statute, The Cities and Local Government Devolution Act of 2016 which provides a framework for ground up level devolution. And the basic idea there is that instead of trying to impose top down devolution on the basis of administrative structures and areas like the North West and the North East, it would allow Local Authorities to combine to form regional structures of their own choosing. Combinations of bodies which could have a directly elected Mayor and then have powers transferred from Whitehall to it. And actually The Cities and Local Government Devolution Act 2016 is quite a powerful statute in terms of what it, at least in principle, facilitates.
In practice, however, while there have been a series of so called devolution deals with various combinations of Local Authorities, Greater Manchester very much in the lead here, but also areas like Sheffield, Liverpool and the West Midlands and while they have transferred some administrative function budgets and statutory powers and their visible expressions, people like Andy Burnham, regional elected Mayors, they are pretty shallow arrangements at present. And the enthusiasm for continuing to pursue this and for progressing this line of devolution really drained away when George Osborne lost his job as Chancellor. It was very much a personal project for him, as it had been for John Prescott in the Blair administration. The Government itself subsequent to that did not show any significant commitment to continuing to roll out and give further powers devolution.
Now, perhaps surprisingly, in the 2019 Conservative manifesto, the Conservatives did state a commitment to full devolution across England, whatever that means - it is yet to be worked out. And for the publication of a devolution white paper last year which would set out the plans for giving effect to whatever full devolution across England means. They have not abandoned that, they continue to say they are going to do it. It has been delayed by the pandemic and, to some extent, also by Brexit which has taken up most of Parliamentary and Government time, as many of you will know, over the last 12 months. But the commitment has been expressed in the House of Commons as recently as October last year and so perhaps this year we will see the publication of some kind of blue print for devolution in England and it will be very interesting to see what the Government does. Not least because of the Prime Ministers own personal commitment to devolution given some of his reported comments about Scottish devolution has been very much questioned in the public domain. But this is an area of debate and we may see progress but clearly there are no guarantees of that.
So fifthly and finally, and I will just touch on this very briefly. Partly because other colleagues of mine are much better placed to speak to you, than I am, and partly because it is such a big subject that it is really a completely separate talk, rather than me lifting slides out on to this one. But we cannot leave this without saying something about Brexit and I do want to do that just very briefly.
So, what happens with Brexit, of course, is that powers which were previously exercised at European Union level come back to the United Kingdom and the UK Government has identified 153 different areas where EU law intercepts with the devolved competence of the administrations and the Assemblies in Scotland, Wales and Northern Ireland.
So the question arises "where does responsibility now lie?" The subject matter that was previously regulated by EU law and has now come back to the UK. Does it sit in Whitehall and Westminster? Or does it, in fact, get dispersed across the devolved administrations? Certain powers have become the sole preserve of Westminster but where they incept with devolved legislative competences they are subject to a couple of qualifications which we will come onto, transferred to Scotland, Wales and Northern Ireland.
Now that, in itself of course, raises certain problems and we will come onto what they are in a second. But it has been necessary to legislate for this situation so, one thing that the Government did under the European Union withdraw elect is to remove from the devolved statutes the previous limitation that they may only legislate in ways which are compatible with EU law. Which, as you will remember, was part of the definition of the legislative competence. It has not restrained them to continue to comply with retained EU law. So, in principle, they may change EU law. In other words those competences have now devolved back to them and they can choose to do things differently at the level of the devolved administrations.
However, it has replaced those requirements with a time limited power for the UK Government to intervene using secondary legislation to restrict the ability of the devolved Authorities to modify retained EU law via regulation. And potentially what the UK Government can do is temporarily freeze the devolved competences in this matter. Any regulations having effect for a maximum of five years. And why has it done that? Well it has done that primarily because the concern is that the repatriation of powers being dispersed across the UK may mean that the different devolved bodies create different rules which create barriers to trade between the different parts of the United Kingdom.
In The Internal Market Act of 2020, the UK Parliament has attempted to ensure that new barriers to trade are not created. So, in other words, you are not going to get a dispersal of power leading to a difference in regulatory rules meaning that the UK itself ceases to function as an integrated market within its own borders. The Internal Market Act does that in particular by introducing two concepts: mutual recognition and non discrimination, which are designed to allow goods which are lawfully sold in one part of the United Kingdom to be lawfully sold in another. It has also changed the concept of subsidiary control which is state aid, effectively. So, it is essentially now reserved under the devolved statutes and remains a matter for Westminster and Whitehall and that is to prevent there being a kind of race between the different components of the United Kingdom to use state aid to try to compete with each other for business, effectively.
The buying time provision, the freezing provision which allows the UK Government to prevent the devolved administrations from legislating to change retained EU law is really there to facilitate a political process of creating common framework agreements which are defined as set out here. They are a consensus agreement between the UK Government and one or more devolved administrations as to how powers that were previously the subject of EU law will be regulated. And the aim is really to buy time and space for the different component parts of the United Kingdom to work out how they are going to make all of this work, so that you do not get radical divergence which causes problems for the internal market.
And, already so far, we have begun to see common frameworks receiving provisional confirmation and awaiting Parliamentary scrutiny in the areas which were just mentioned at the bottom here. That is obviously going to be an important and rolling subject as Brexit works its way out and, in due course, as the powers of the devolved administrations to do something different begin to bite. But hopefully without undermining the fundamental premise of the internal market within the country.
So, that is a very quick canter through all of the issues. I am conscious that I have gone slightly over time but we still have 15 minutes for questions and, on that basis, I am going to stop the slides and hand over to Michael to ask any questions that the audience has been putting forward.
Michael: Thank you John and just a reminder for the audience to use the Q&A function on Zoom, if they have any questions. I have two questions John at the moment if I may. I think one of the most startling observations from your talk was the imbalance between a strong system of devolved administration in Scotland, Wales and Northern Ireland and almost no effective devolution in England. Does that imbalance create any particular problems?
John: Yes, that is a really good question, Michael. I think it does in reality and I think it is part of what is ultimately fuelling the resurgence of interest in independence, particularly in Scotland. What you have is a very unbalanced nation State now, where you have got three Nations, which because of devolution, increasingly think of themselves as jurisdictions which make their own laws, to a high degree, set against a huge monolithic block which is England, which makes its own laws.
So you have effectively 85% of the population in one part of the country and five, three and two percent of the population in the other places. So there is a huge imbalance just in terms of size of population represented by the different countries. And I think that is very unhealthy, in reality. ;It tends to facilitate a narrative in which if you are based in Scotland, you see England as a pretty monolithic thing which dominates the Union. In reality, England is a very diverse country in itself and has lots of regional differences and there is a huge north/south divide as everybody knows, which is an on going problem in England which has never been satisfactorily addressed and tends to get worse over time, in which the Government is committed to addressing as part of what it calls its levelling up strategy. But which... there is a problem.
England is quite a divided country in many ways but you would not know that looking at its Governance structure. It looks like a monolithic entity and therefore the United Kingdom is a very strange beast where you have these four different component parts which are not really comparable just because of the respective sizes. And I think that is a fundamental, political and structural problem. If you were sitting down without considerations of nationalism and designing something on a rational basis you certainly would not have Government centralised for 85% of the population while for the remaining 15% of the population it is spread out through devolved arrangements. That is not how you would design a modern nation state.
Michael: I think one area which was particularly interesting and Andrea has raised this as a question too, was the procedure for referring matters of concern over you know, devolution powers and where they sit relating to Bills before they become ratified to the Supreme Court. Where is that procedure found? Is that a Court procedure? Is that a political procedure? How does that work?
John: No, it is a legislative function from the devolved legislation so... So, essentially the procedure for a reference to Court gives powers to the law officers of the different jurisdictions and Attorney Generals for Scotland and Northern Ireland, Counsel General for Wales to make those references. Why might they want to do so? In part, because they are the legal guardians of the effective functioning of the devolved arrangements and if they see something being done that is unlawful, it is part of their role to call it.
But, secondly, because it is not really in anybody's interests that legislation is passed which goes on the Statute Book and which then has to be unwound because it is subsequently declared unlawful because it has been judicially reviewed and a Court has had to strike it down. It is much better to address these issues before they have conclusively found their way on the Statute Book by getting royal assent. So the mechanism allows for referral between Bills being passed by the devolved legislatures and royal assent.
In other words before they come into force, so that the Court can consider any questions before they become law, before anybody is finally relying on them and you can deal with any problems then, refer it back to the legislatures which can consider whether they want to do something different. And The Christian Institute case, which was the Scottish case, is an example of that not happening and legislation having been created which therefore had to be unwound at a later stage, which is less attractive.
Michael: Just a related question for that, if I may, and then probably one more before we finish. Do the law officers become subject to any kind of lobbying to that extent then? Or is it purely professional legislative judgement from the law officer that this is or is not within power?
John: Well of course, in principle, they are subject to lobbying whether the law officers are doing their job properly as a kind of guardian of the constitutionality of these arrangements ultimately depends to a high degree on the integrity of the individuals appointed to be law officers unless. That is really no different in the arrangements in the Westminster Parliament and you might remember briefly that some Geoffrey Cox who was the Attorney General during some of the key elements of the Brexit debate in Theresa May's Government had to make quite a contentious decision as to what advice he gave around the interpretation of some of the provisions that Theresa May had negotiated with Europe and he was under massive political pressure there. Not least because, in addition to being the Attorney General, he was actually a Tory MP and so there was potential for a real constitutional conflict of interest and indeed no clear separation of powers with regard to his role. But he is widely regarded as having just done what he believed to be the right thing as a matter of legal advice and to have given, what he believed to be, the best legal advice, even though that was not in the political interests, at the time, of the Government of which he was a part.
So, it very much depends on the system on the law officers acting with integrity and exercising their duties in relation to the constitutionality of the legal arrangements. Of course, they might not in principle, but... historically many of them have done that to a high degree.
Michael: And we have a question here from Jack which is focusing in on the sort of... if I may the Mayoral precept which allows additional tax revenue to be generated. In reality that seems to be a bit of a blunt tool. Do you think, that actually, the effect of devolution will only work properly if proper sums of money get passported down from Central Government?
John: Yes. At the end of the day, you can give whatever devolve powers you like to somebody, but if they do not have the budget to spend then they are not going to be able to exercise those devolved powers in an effective way. That is one reason why the Scottish and Welsh Parliaments have been given tax varying powers. It allows them, in principle, to raise or lower the tax thresholds, or put additional money on income tax rates. The Scottish Parliament has exercised that to a very minor degree. Because what you can do depends on the money and the Mayoral precept is raising very small sums of money, comparatively speaking. Devolution in England and Wales will only work effectively when sums of money are passed down from the Treasury, from general tax raising powers and from business rates, in particular, which of course there are plans to do.
Michael: And a final question then John and we have probably got a couple of minutes on this one. It's interesting to see devolution featuring on the Conservative manifesto. Is this part of a levelling up debate? Is this how Central Government is going to give more influence to localities?
John: Yes, I think ultimately it has to be viewed as part of that debate. I must admit, I was slightly surprised to see it on the Conservative manifesto. ;Not least because Dominic Cummings, who I referred to as an opponent of devolution back in 2003/2004 when it was being floated in the North East and cut his campaigning teeth on an objection to the proposed evolution at that time, was the Prime Minister's principal advisor at the time of the 2019 Tory manifesto and it was the kind of thing that you might have expected him to veto. So, why is it in there at all? Obviously, the Conservatives have sought to appeal to, what people call the red wall seats, the previously solid Labour seats in the Midlands and the North. Some of which they were very successful in capturing at the last election and they will probably need to capture again, at the next election, if they are to remain in power.
And for people in those constituencies, levelling up is not an abstract concept, it is a real issue. It is about the north/south divide and the very serious mismatch we have in our economy, where most of the investment and most of the wealth tends to corollas in the South Eastern corner. And, if you were to look at productivity figures, for instance, you will see that London is just about the most productive place in the entirety of Europe by reference to all productivity measures, whereas much of the rest of the country is below the EU average. That is a very imbalanced country economically and one of the reasons I guess it is imbalanced economically is precisely because it is imbalanced in terms of where political power lies.
Money and economic growth tends to gravitate around centres of economic power and power tends to coalesce in places where the money and the growth is. So, over the last couple of hundred years we have seen a real coalescence of power in London, deindustrialisation of everywhere else which has reduced the power of the regions, leaving us with a very economically polity. ;And the Government says that it is committed to addressing that. If it wants to address it seriously it probably does need to look at the question of where power lies and if it genuinely wants to level up the entirety of the country to let some power and some money, that goes with that power, away from Whitehall and Westminster into the regions themselves to be spent there in the way they decide is best for those regions.
So, yes I think all of those things are tied in together into one big package.
Michael: Thank you John, thank you answering those questions and thank you for a most interesting presentation too. To all of those involved in preparing a big thank you and to all of those who were listening I thank you for supporting our ThinkHouse sessions. I would just like to trial the next we have got coming up which I think is on 28 January. Susie will shoot me if I have that date wrong but I hope you have got the appointment. It is on Free Ports. I know that will be a very interesting topic and we have heard that the Government are doing strategic reviews and have got ideas for ten new free ports in the UK so it is going to be quite a live issue for many of our clients bidding for the opportunities in that market.
But thank you all, I hope you have enjoyed it and enjoy the rest of your day. Thank you.
Read the original article on GowlingWLG.com
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.