Lecture 12: Federal, Regional, Devolved forms of government

Introduction This lecture begins by comparing forms of territorial governance with reference to federal, regional and devolved systems. The second section turns to devolution with particular reference to the form of devolution introduced in Scotland. Devolution was not designed as the first step towards a federal system, but it has significant elements in common with federalism. Most obviously an important reason for devolution was to accommodate political aspirations based on national identities. Since its inception the situation regarding each devolved nation has been constantly developing. The Brexit process has introduced further uncertainty over the continuation of the United Kingdom as presently constituted.

Characteristics of federalism Federalism is a method for sharing sovereignty, and not just power, between governments within a single state. With devolution sovereignty remained with Westminster. Constitutional amendment would be required to reverse or modify most federal systems (not for devolution). As a constitutional device it presupposes a formal political agreement establishing both the levels of government and their spheres of authority with clear legal boundaries. Federal systems are usually symmetrical with all the states having the same institutions and powers. Devolution has allowed individually fashioned systems for each part of the UK. Constitutional/Supreme Court detemine legislative competence and the constitutional limits. Sub-national units often have revenue raising powers.

Summary of features of federal systems Common agencies for law enforcement; Law of the union applies to the member states and to individual citizens. Common currency and national economic management. Revenue raising and budgeting shared; Common foreign, defence and security policy conducted at national level; Independent legislative institutions with law making processes at both levels; Democratically elected institutions at both levels. Constitutional or Supreme Court responsible for declaring the legal limits.

USA Division of sovereignty between Federal government headed by the President with responsibility for foreign affairs, defence and national economic management. 50 states each with their own institutions mirroring the federal institutions – Governor – two house state legislature – State Supreme Court - institutional symmetry between states. Each state produces its own budget and are required to match revenue and expenditure. State legislature can legislate in relation to domestic policy issues within the area of the state but certain issues remain with the Federal Government based in Washington DC.

Germany ‘cooperative federalism’ Federal Republic of Germany –structure and powers regulated by the constitution and protected from amendment. The state as a whole as well as member states have sovereignty. German system is symmetrical - even distribution of powers – unifying effect of the basic law but the Länder are uneven in size. Constitution requires equalisation of service provision between states. Länder granted core responsibilities which are inalienable – executive federalism. The Bundesrat, upper chamber, comprises representatives from the states (varies according to population) and the bundesrat therefore approves legislation on behalf of the states before the states are charged with the implementation of these measures.

Regional government in Italy Italian state formed from separate nation states e.g. Piedmont Savoy, Venice, Kingdom of Naples, Lombardy, Papal States etc. Post WW II 1948 Constitution recognised regions and special regions. Entire nation divided into regions. Regions have some law making powers, limited tax raising powers and granted responsibility for delivery of important services e.g. health; Very unequal distribution of wealth between North and South. Danger that granting greater regional autonomy will accentuate these differences and destabilise the Italian state. Constitutional conflict over resource allocation often resolved by constitutional court.

Reasons for devolution Scottish and Welsh nationalism a reaction highly centralised UK constitutional system, discovery of oil etc. Scotland separate nation until 1707 with different legal system, education system, church. Northern Ireland remained part of UK after South became Irish Republic following civil war. The form of devolved government at Stormont broke down in the 1970s and current arrangements part of a peace settlement. Wales combined with England from standpoint of law and administration but retained its own distinct language and culture.

What is devolution? Devolution creates an elected Parliament/Assembly and administration at an intermediate level between central and local government with wide range of law-making powers and responsible for policy implementation in a number of fields but sovereignty is formally retained by the Westminster Parliament rather than shared as with many federal systems. Each system custom built to suit local needs e.g. power sharing in NI. Extreme asymmetry unlike federal systems. In population terms: No devolution for England with 55 million plus: Scotland 5.5, Wales, 3.5, NI 1.9. Barnett block grant funding from central government gave sound financial basis but no correlation between tax and spend. Mainly informal resolution of legislative overlap/conflict – Sewel Convention – Concordats – Joint Ministerial Council. Many policy areas coincide with EU law, not devolved but implemented at devolved level. Constitutional significance: UK ceases to be a unitary centralised state.

The myth of the ‘unitary state’ According to some influential commentators the UK was never really a unitary state. Rather this is an English view of the constitution. ‘Nor again are ideas of devolutionary or federal bodies as utterly unfamiliar as Dicey liked to pretend. From feudal times, through the century of the two parliaments and the brief life of Grattan’s Parliament in Ireland, down to the separate legal and ecclesiastical governments in Scotland and the great white Parliament on Stormont Hill, we have experience of a huge variety of chartered, independent bodies exercising a huge degree of self-government’ (Mount).

How devolution was introduced Devolution established by statute: Scotland Act 1998, Government of Wales Act 1998; Northern Ireland Act 1998. But these statutes were not entrenched and have already been amended in significant ways but Scotland Act 2016 recognises permanence. Sovereignty remains with Westminster and for example EU matters negotiated by Westminster. Each devolution statute different: asymmetrical re-distribution of powers (Spain/special regions). Nothing equivalent for England.

Elections: Scottish Parliament Welsh Assembly Additional member system: Scottish Parliament has 129 members. Each elector has 2 votes. 73 constituencies each of which elects an SMP on first past the post basis. The 'second vote' is used to elect 56 additional members. Scotland is divided into 8 parliamentary Regions and each region elects 7 regional MSPs. In the second vote the voter votes for a party rather than a candidate. The parties are then allocated a number of additional members to make the overall result more proportional. The regional MSPs are selected from lists compiled by the parties. These MSPs are also sometimes referred to as List MSPs. Similar method in Wales but 60 members in 40 constituencies from 5 regions etc.

Legislative procedure Scotland Single chamber legislature. Different types of legislation: government bills, committee bills, members bills, private bills etc. Strong emphasis on pre-legislative consultation. Then: Stage 1 sent to a Parliamentary committee for consideration which prepares a report. Parliament then considers principle of the bill. Stage 2 line by line scrutiny by parliamentary committee. Stage 3 Bill is considered by the whole Parliament. Amendments can be made before there is a vote on the bill. If successful four week period during which advocate general responsible for post-legislative scrutiny to see if it is within legislative competence.

Protecting sovereignty General power to legislate is granted to the Scottish Parliament Northern Ireland Assembly and Welsh Assembly. However, this power is limited in several ways. For example in relation to Scotland under SA s.29: certain enactments are specifically listed in SA Schedule 4 a as being protected from modification. (2) Also 'reserved matters' in SA, Schedule 5 are outside the competence of the SP. (3) Further prevented from enacting legislation with extra territorial effects, contrary to EU law and in conflict with the ECHR. Similar limitations under NIA 1998 and GWA 2006.

Protecting sovereignty continued SA requires pre-legislative and post-legislative scrutiny under ss.31 and 32 (similar for Wales and NI). Presiding Officer decide whether a bill falls within legislative competence prior to introduction. Prior to Royal Assent the law officers consider whether the measure is within legislative competence. A bill can be referred to the Judicial Committee (soon the Supreme Court) to decide the legislative competence. The Secretary of State has additional powers to intervene under SA s.35 if he/she has reasonable grounds to believe that legislation beyond the competence of the SP.

Devolution issues and the courts Challenges as devolution issues on the grounds set out below may be brought before the ordinary courts and may reach the UK Supreme Court on final appeal. They may concern: - whether an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament is within the legislative competence of the Parliament - “A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or Act is incompatible with any of the Convention rights or with Community law". - A question of whether a purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, incompatible with any of the Convention rights or with Community law AXA General Insurance Ltd v The Lord Advocate [2011] UKSC

Informal dispute resolution Normally by way of bi-lateral or multi-lateral concordats (soft law agreements between Westminster and devolved administrations) For example In the case of finance: ‘If there is disagreement between Treasury ministers and devolved administrations about changes to the Statement or about any aspect of its application to determining funding, the relevant devolved administration or Secretary of State can pursue the issue with Treasury Ministers’. If still not resolved then referred to ministers of devolved administrations and Westminster government through the Joint Ministerial Committee and finally to the Cabinet.

Scottish Independence Scottish National Party won the elections to the Scottish Parliament in May 2011 and obtained an overall majority. Pledged to hold a referendum on independence before the next elections in 2015. Any such referendum would not have had any legal effect because constitutional matters were not devolved under the Scotland Act 1998. PM Cameron called the bluff of SFM Salmond and decided to agree to the holding of an official binding referendum on independence in 2014 under SA 1998. A vote in favour of independence would have led to negotiations between the elected government in Scotland and the Westminster government on the precise terms of Scottish independence.

The result Support for independence rose from just over 30% before the referendum was announced, with opinion polls indicating campaigns neck and neck at one stage in the campaign. In statistical terms 2,001,926 voted to remain part of the Union by registering a ‘No’ vote, while 1,617,989 voted in support of independence with a ‘Yes’ vote. This outcome amounted to a decisive margin of 55.3% against with 44.7% in favour. The turnout of 3.6 million comprising 84.6% of the electorate was very high by UK standards and it included many 16 and 17 year olds who were able to vote for the first time. Strong showing for the SNP with spectacular increase in membership and decline of other mainstream pro-union political parties in Scotland. Since the referendum the SNP has taken off as a political force in Scotland and is expected to capture many seats from Labour. It may be able to enter into a coalition agreement with the post May 7 Westminster government.

Fiscal Devolution: new phase Main weakness of devolution was reliance on block grant Barnett formula of funding allocation from central government and therefore no relationship between tax and spend. But the relatively generous overall allocation under Barnett allowed the Scottish government to pursue its own policies e.g. no student fees, free care for the elderly etc. Tax raising powers under Scotland Act 1998 never used. Revenue for Scottish executive provided under Barnett formula. Population based with top up. An overall budget is made available annually by the Westminster Parliament in each departmental field and the ‘Barnett formula’ has determined the allocations for the increase or decrease in expenditure according to a ratio calculated on relative population size. For every £100 of spending per head in England, £132 was spent in Scotland.

Scotland Act 2016 Permanence of SP and Sewel Convention placed on statutory footing. 2016 legislation sets out a revised fiscal framework for the United Kingdom. UK government manage UK-wide risks while the Scottish Government should in the future manage Scotland specific risks. Scottish Parliament now able to set the rates of income tax and the thresholds at which these are paid for the non-savings and non-dividend income of Scottish taxpayers (SA 2016, s.13). Scottish Government receives all income tax paid by Scottish tax payers plus first 10 percentage points in the standard rate of Value Added Tax added to the Scottish Government’s budget (SA 2016 s.16). Air Passenger Duty and the aggregates levy is devolved (SA 2016 s.17 & 18). Increased powers of borrowing (SA 2016 s.20). The amount payable under Barnett formula adjusted to take account of future tax transfers from the UK Treasury of locally raised income tax.

Legislative consent motions At the moment when devolution was introduced it was envisaged that a (Sewel) convention would emerge acknowledging that the UK Parliament will not normally legislate in devolved areas without consent of the devolved legislative body. This is now incorporated under Scotland Act 2016. In practice, to the surprise of many, legislative consent motions have been a frequent occurrence e.g. for practical reasons to avoid duplication where EU directives etc have to be implemented.

Many additional powers devolved Scottish Ministers have power to run Scottish elections within their competence (SA 2016 s.4). Devolution of Welfare benefits (SA 2016, s.22-31) which will mean that the Scottish Parliament will have autonomy in determining the structure and value of existing benefits or of any new benefits which might replace them. Scottish Parliament will take over responsibility for the support for the unemployed. powers in relation to energy efficiency and fuel poverty will be transferred to Scotland. BBC and broadcasting regulation. Plus consumer advice and advocacy, rail franchising, roads, equal opportunities and onshore oil and gas extraction.

Asymmetrical devolution: The West Lothian question The fact that England has no equivalent level of government creates a number of constitutional problems. Scottish, Welsh, NI MPs at Westminster have enjoyed the right to vote on matters concerning England. English MPs no longer voted over devolved matters which were now legislated over by the SP, Welsh and NI assemblies. Westminster MPs representing devolved parts of the UK have little to do for their constituents as policy is implemented by devolved institutions accountable to devolved parliament and assemblies. No direct accountability at Westminster for devolved spending.

Addressing the English Question No equivalent level of government for England (51 million/84% population) but the asymmetry of devolution raises a number of constitutional issues. No support for an English Parliament but Westminster arguably has become one by default. Back door method: introduce measures to deal with West Lothian question e.g. voting restrictions for Scottish, Welsh, NI MPs. Proposals for equivalent tier of English Regional government based on Regional Development Agencies. Prescott scheme a total failure following referendum in North East. London only part of England with additional tier of strategic government i.e. elected Mayor with Cabinet accountable to GLA (not equivalent to devolution).

EVEL: Consequences? Introduced not by legislation but by a change after a time limited debate to standing orders of the House of Commons (House of Lords would have been a potential obstacle); To some extent this change addresses the anomaly concerning MP voting caused by the introduction of the SP, WA, NIA. Scottish MPs are prevented from voting on English only legislation. The problem is that it creates different categories of MPs, some with more powers/voting rights than others. In so doing the English Votes for English Laws potentially undermines the role of Westminster as a national Parliament by creating two distinct classes of MPs depending upon the subject matter of legislation.

To sum up UK system ‘asymmetrical’ different degrees of autonomy. No devolved government for England but EVEL has made changes to legislative process at Westminster. Scotland: has been referred to as quasi-federalism, even more reason to do so post Scotland Act 2016. Now Scotland has tax raising powers. Elected Parliament or Assembly with competences for many domestic matters in the hands of devolved bodies Scotland, Wales and NI have law making powers over devolved areas. Brexit will have major impact because withdrawal involves EU legal powers and changes could lead to hard border in Ireland between North and South in absence of customs union.

Does latest version of devolution more closely resemble federalism? Scotland post ref has far greater autonomy and fiscal devolution. The same trend in Wales and Northern Ireland is likely. No English Parliament but the pivotal role of Westminster as the national legislature has been called into question by changes to law-making procedure. However, no direct democratic accountability in Parliament for expenditure relating to devolution. Proposals for regionally based replacement for House of Lords not in immediate prospect. Enhanced role of the courts and particularly the Supreme Court in relation to devolution issues and super majorities. At the same time we have seen that at grass roots local level there are increasing demands for decentralisation and greater autonomy. In theory, legal sovereignty still applies.

For discussion (1) What were the main reasons for the introduction of UK devolution? (2) What powers and functions were given to the devolved parliament/assemblies and executives: how have these changed? (3) Why is devolution described as asymmetrical?* (4) What is the West Lothian question and how could this issue be addressed. Refer specifically to England? (5) How is the sovereignty of the Westminster Parliament protected post devolution? (6) What has been the effect of the changes introduced in Scotland under the SA 2016 following the 2014 referendum? (7) How does devolution differ from federalism?* (8) How is the Scottish Parliament and the Assembly in Wales elected?