Devolution establishes new constitutional relationships between the different parts of the UK, relationships not wholly dissimilar from those familiar in federal states, such as the USA and Germany, but wholly new in Britain, with the very limited exception of the 1921-72 Northern Ireland experience of devolution.
Devolution is not, of course, the same as federalism. Federalism involves dividing the powers of government between a central government and various states or provinces, between a federal government in Washington or Berlin and state governments in, for example, California or Bavaria. In a federal state, the legislature, Congress in the United States and the Bundestag in Germany, is not sovereign but subordinate to the constitution. The constitution is sovereign, and in most federal states, the courts can declare void federal legislation that is contrary to the constitution.
Devolution, by contrast, preserves, in principle, the sovereignty of Parliament. The Westminster Parliament can, in theory, continue to legislate for Scotland, Wales or Northern Ireland even on devolved matters; and it can, if it wishes, simply abolish the devolved bodies by a simple Act of Parliament, as it did with the Northern Ireland Parliament in 1972.
Devolution in practice
Is the devolved UK a quasi-federal state? Principles aside, devolution imposes a severe limitation upon the sovereignty of Parliament. In practice, Westminster is no longer sovereign over the domestic affairs of Scotland and Wales - or, at the very least, the sovereignty of Parliament means something very different in Scotland, and to some extent in Wales, from what it means in England. In England, the sovereignty of Parliament still corresponds to a genuine supremacy over 'all persons, matters and things'. Parliament can legislate on all matters as it wishes, subject to the European Communities Act (1972) and the Human Rights Act (1998). In Scotland, by contrast, the sovereignty of the Westminster Parliament with regard to the domestic affairs of Scotland, which have largely been devolved, seems to mean little more than a vague right of supervision over the Scottish Parliament, with a perhaps somewhat theoretical right of abolishing the Scottish Parliament. In Scotland, however, by contrast with the Northern Ireland Parliament set up in 1920, the Parliament was set up following a referendum. If it were to be abolished by the UK government against the wishes of the Scots, there would be a real danger of Scotland separating from the UK. Devolution, then, may prove to be closer to federalism than might at first sight appear. The Westminster Parliament's sovereignty over Scotland now amounts to something far less than the 'unlimited power' identified by A. V. Dicey (see Box 1) and others.
But devolution has introduced radical changes into Westminster. Excepting only the Northern Ireland experience between 1921 and 1972, Westminster has always been characterised by the principle that every MP enjoys similar rights and duties. There have been no territorial differences in the responsibilities of MPs from different parts of the country, since every MP has been equally responsible for scrutinising both the domestic and non-domestic affairs of every part of the UK. Since 1999, however, MPs have not been able to play any part in legislating for the domestic affairs of Scotland or Northern Ireland or in drawing up secondary legislation for the domestic affairs of Wales. Only with regard to England do MPs continue to enjoy the power, which hitherto they enjoyed for the whole of the UK, of scrutinising both primary and secondary legislation.
Thus, Westminster is no longer a parliament for the domestic and non-domestic affairs of the whole of the UK. It has been transformed into a parliament for England, a federal parliament for Scotland and Northern Ireland, and a parliament for primary legislation for Wales. Westminster has become, it might be suggested, a quasi-federal parliament.
A. V. Dicey on parliamentary sovereignty (Box 1)
Under all the formality, the antiquarianism, the shams of the British Constitution, there lies latent an element of power which has been the true course of its life and growth. This secret source of strength is the absolute omnipotence, the sovereignty of Parliament…Here constitutional theory and constitutional practice are for once at one…It is, like all sovereignty at bottom, nothing less but unlimited power.
A. V. Dicey (1886, 1973 edn) England's Case Against Home Rule, Richmond Publishing Company
There is a further consequence, namely that MPs for Scotland and Northern Ireland have been deprived of most of their constituency duties. Most of the matters on which constituents contact their MP, such as housing and education, are now in the hands of the devolved bodies in those parts of the UK. MPs for Scotland and Northern Ireland are responsible primarily for foreign affairs, defence, macroeconomic policy and social security. Thus, while MPs from England retain their constituency responsibilities, MPs from Scotland and Northern Ireland have hardly any constituency responsibilities, and MPs from Wales have much reduced constituency responsibilities.
It might seem, however, as if there is a further difference between a federal system and legislative devolution, such as that established by the Scotland Act (1998). In a federal system, disputes over the distribution of powers are determined by a court; with devolution, by contrast, the new UK Supreme Court will be able to pronounce upon the constitutionality of Scottish legislation, but not upon Westminster legislation. Nevertheless, this clear juridical difference between federalism and devolution may not be so clear in practice. Were the Supreme Court to rule, in a particular dispute, that the Scottish Parliament was acting intra vires (Box 2), it would be politically difficult for Westminster to override it, either by using its sovereignty to legislate for Scottish domestic affairs or by altering the distribution of powers. If it did, Parliament would appear to be flouting the judgment of a court on an issue on which Scottish national sentiment might well be engaged. If this view is correct, Westminster might in practice come to lose yet another of the characteristics of a sovereign parliament, the power to make laws from which there is no appeal; and the powers, not only of the Scottish Parliament but also of Westminster, over Scotland will have come to depend upon the decisions of a court, a condition characteristic of a federal system of government.
In his Introduction to the Study of the Law of the Constitution, A. V. Dicey detected 'three leading characteristics of completely developed federalism - the supremacy of the constitution - the distribution among bodies with limited and coordinate authority of the different powers of government - the authority of the courts to act as interpreters of the constitution'. If it comes to be recognised that devolution implies, in practice, an abdication of Westminster's ability to alter the settlement at will, it will have been recognised, finally, that the logic of devolution points to the development of a codified constitution - and a constitution that bears strong resemblances to that of a federal state.
Key Terms (Box 2)
intra vires: from the Latin. Meaning 'within the powers' of an individual or institution
ultra vires: again, from the Latin. Meaning 'beyond the powers' of an individual or institution
There is a sense, however, in which devolution points even beyond a quasi-federal system of government. The legislation providing for devolution to Scotland, Wales and Northern Ireland establishes a new constitutional settlement among the nations comprising the UK. The UK, as a result of devolution, is in the process of becoming a new union of nations, each with its own identity and institutions. In the nineteenth century, British statesmen resisted Home Rule for Ireland with the argument that the Irish were not a separate nation but part of a larger British nation, just as, for example, the Bavarians are not a nation, but part of a larger German nation. The unitary British state was thus the expression of a belief that the non-English sections of the UK formed part of a single British nation.
Devolution, by contrast, is a new constitutional settlement, which expresses the belief that the non-English parts represent separate nations; these, nevertheless, choose to remain within the larger multinational framework of the UK. Devolution, therefore, transforms not only the state but also the nation. It seems to have become implicitly accepted that the various nations comprising the UK enjoy the right of self-determination and that this includes the right of secession, a right denied in many federal constitutions. The United States in the nineteenth century fought a civil war (see Box 3) to confirm the proposition that the states comprising it were part of an indissoluble union.
Key term (Box 3)
secession: the act of withdrawing from a political union or organisation.
The efforts of 13 states to secede from the United States of America precipitated the American Civil War (1861-65).
In the case of Texas v. White (1869), the US Supreme Court ultimately ruled that the individual states were not permitted to secede from the union established under the US Constitution.
It has come to be accepted that the constitutional status of Northern Ireland cannot be changed without the consent of the people of Northern Ireland. The people of Northern Ireland, therefore, have an explicit right of self-determination. The Scots, too, argue that they enjoy a right to self-determination. In 1989, the Scottish Constitutional Convention issued a Claim of Right, signed by 58 of Scotland’s 72 MPs. It declared:
We, gathered as the Scottish Constitutional Convention, do hereby acknowledge the sovereign right of the Scottish people to determine the form of Government suited to their needs.
On this view, sovereignty lay with the people of Scotland, not with Westminster. Significantly, the Claim of Right was ceremonially handed over to the presiding officer of the new Scottish Parliament just before its inauguration on 1 July 1999. Thus, it can be argued that both the union with Scotland and the union with Northern Ireland rest on the consent of the people of Scotland and Northern Ireland.
There is, however, a further complexity so far as Northern Ireland is concerned. It is that neither of the two communities in Northern Ireland — neither the unionists nor the nationalists — regard themselves as belonging to a separate Northern Ireland nation. The unionists regard themselves as part of the British nation, and seek to preserve their position of equal citizenship within the UK. The nationalists regard themselves as part of the Irish nation, from which they were illegitimately sundered when Ireland was partitioned in the Government of Ireland Act of 1920.
Therefore, as well as providing for a new constitutional settlement amongst the nations comprising the UK, the Belfast Agreement established a constitutional settlement between the nations comprising the UK and the other independent nation sharing these islands, namely the Republic of Ireland. It was for this reason that the international treaty which gave legislative expression to the Belfast Agreement, signed on Good Friday in 1998, created a consultative British-Irish Council, whose role would be, in the words of the agreement, 'to promote the harmonious and mutually beneficial development of the totality of relationships among the people of these islands'. The members of this council are Britain and Ireland, the devolved bodies in Scotland, Wales and Northern Ireland, and representatives of three British Crown dependencies, the Isle of Man, Guernsey and Jersey, which are not part of the UK.
The creation of devolved bodies in Scotland, Wales and Northern Ireland, together with the British-Irish Council, not only transform a unitary state into a quasi-federal one but also provide for a confederal link between the UK as a multinational state and the Irish Republic. These arrangements constitute an attempt to recognise the various and distinctive national identities of the peoples living in these islands and the close and complex links between them.
It took almost the whole of the twentieth century for British politicians to discover, painfully, the essential truth of the Gladstonian proposition that neither the unionist state nor separatism could yield solutions to the complex problems posed by the multinational nature of the UK. The devolution legislation and the British-Irish Council propose a solution which recognises and yet seeks to transcend nationalism through institutions that express not only the separate national identities of the components making up the UK and the Republic of Ireland, but also their underlying interconnections.
The art of pragmatism
The sociologist Karl Mannheim once said that the British had 'a peculiar genius for working out in practice the correlation of principles which seem to be logically opposed to each other'. That genius will certainly be needed if the devolution settlement is to prove a success.
Reproduced by permission of Philip Allan Updates.