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scaled down in such a way as to enable it to be out-voted by Scotland, Wales and Northern
Ireland, together representing less than one-fifth of the population. A United Kingdom feder-
ation of the four countries, with a federal Parliament and provincial Parliaments in the four
national capitals, is therefore not a realistic proposition.
532. The imbalance would be corrected if England were to be divided into a number of units,
each having the status of a federal province. It is clear, however, that this artificial division into
provinces with independent sovereign powers would be unacceptable to the people of
England. Advocates of federalism have attempted to get round the difficulty by an arrange-
ment in which the regions of England would not have the full status of federal provinces; they
would have elected assemblies with fewer powers than the legislatures of Scotland, Wales and
Northern Ireland, and a separate body would be established to deal with all-England affairs.
But no matter how this body were to be constituted and its powers shared with the regional
assemblies, the fact would remain that England by its weight of numbers and wealth would
continue to dominate the federation.


The nub of the case for federalism is that it allows for autonomy and diversity
in a system of shared power, while keeping su¬cient authority at the centre to
uphold common standards (eg of respect for human rights) and to maintain the
unity, security and prosperity of the state. Are the arguments of the Kilbrandon
Commission conclusive against the case for a United Kingdom federation? (See
further Olowofoyeku, ˜Decentralising the UK: the federal argument™ (1999) 3
Edinburgh L Rev 57.)
The federal principle has not been without in¬‚uence in British history. If
dismissed by Dicey as incompatible with fundamentals of the British consti-
tution, it has been embraced by other writers of his time and ours and on
occasion by politicians, and it provided the framework for a number of
constitutions established for former British colonies. (See B Burrows and
G Denton, Devolution or Federalism? (1980); J Kendle, Federal Britain:
A History (1997); Crozier, ˜Federalism and anti-federalism in the United
Kingdom™ and Bosco, ˜The British federalist tradition™ in F Knipping (ed),
Federal Conceptions in EU Member States (1994).) The political impetus for
the introduction of a federal system of government does not, however, at
present exist in the United Kingdom. The devolutionary projects of 1998 for
Scotland, Wales and Northern Ireland were not designed to refashion the
United Kingdom as a federal state.
(See generally M Burgess and A Gagnon (eds), Comparative Federalism
187 Devolution and the structure of the UK


and Federation (1993); S Rufus Davis, Theory and Reality: Federal Ideas in
Australia, England and Europe (1995); G Smith (ed), Federalism: The Multiethnic
Challenge (1995); J Hesse and V Wright (eds), Federalizing Europe? (1996);
M Fazal, A Federal Constitution for the United Kingdom (1997); J Barnes,
Federal Britain (1998); R Watts, Comparing Federal Systems (2nd edn 1999);
Marquand, ˜Federalism and the British: anatomy of a neurosis™ (2006) 77 Political
Quarterly 175.)


(b) Devolution
A system of devolved government applied in Northern Ireland from 1921 to
1972, replaced in the latter year by direct rule from Whitehall. (See below,
pp 228“33.)
The 1974“79 Labour Government launched a scheme for the devolution of
powers to Scotland and Wales. Responding to an upsurge of Scottish and Welsh
nationalism in the 1960s (rather than acting upon a cool appraisal of constitu-
tional de¬ciencies and the need for reform), the Wilson Government initiated
the appointment in 1969 of a Royal Commission on the Constitution:

To examine the present functions of the central legislature and government in relation to the
several countries, nations and regions of the United Kingdom;
to consider, having regard to developments in local government organisation and in the
administrative and other relationships between the various parts of the United Kingdom, and
to the interests of the prosperity and good government of Our people under the Crown,
whether any changes are desirable in those functions or otherwise in present constitutional
and economic relationships.

The Commissioners saw it as their main concern to investigate the case for
˜devolution™ of governmental functions to new institutions in the countries and
regions of the United Kingdom (Kilbrandon Report, paras 12“19).
The Kilbrandon Report (so named from Lord Kilbrandon, who had
become chairman of the Commission in 1972) was published in 1973 (Cmnd
5460). The Report adopted a broad meaning of the term ˜devolution™, so as
to include both the ˜deconcentration™ of functions within the governmental
hierarchy, which it termed ˜administrative devolution™, and the more
advanced devolution which involves a transfer of central government powers
to regional bodies, although ˜without the relinquishment of sovereignty™.
Devolution of the more advanced kind might extend to the transfer of powers
to determine policies and enact legislation to put them into e¬ect “ legisla-
tive devolution; alternatively, major policies and primary legislation might be
kept at the centre, while powers of subordinate policy-making and adminis-
tration were transferred to the regions “ executive devolution. The question
for the Commission was whether the case had been made for going beyond
the existing system of administrative devolution in favour of either legislative
188 British Government and the Constitution


or executive devolution to any of the countries or regions of the United
Kingdom.
All the Commissioners were persuaded that central government had become
overloaded and remote, and that there had been a weakening of public
con¬dence in the democratic process. As a remedy for these in¬rmities of the
body politic, twelve Commissioners “ all but one “ prescribed the introduction
of schemes of legislative or executive devolution, but there was disagreement
about the application of the schemes. Eight Commissioners proposed a scheme
of legislative devolution for Scotland, six wished to see it extended to Wales, two
favoured executive devolution for Scotland, Wales and eight English regions,
three wanted an elected assembly for Wales with advisory functions only, nine
recommended non-elected regional advisory councils for England. In a
Memorandum of Dissent (Cmnd 5460-I) two Commissioners proposed a more
thoroughgoing scheme of executive devolution for Scotland, Wales and ¬ve
English regions.
The Labour Government responded to these discordant voices by deciding in
1974 to establish elected assemblies in Scotland and Wales, the former with
legislative and the latter with executive powers (Democracy and Devolution:
Proposals for Scotland and Wales, Cmnd 5732). The di¬erence of treatment was
justi¬ed by the Government as resting on the need for distinctive legislation in
Scotland, with its separate legal system, and the lack of public demand in Wales
for a legislative assembly. The Government ruled out the creation of an English
assembly or regional assemblies in England with legislative powers, but can-
vassed the possibility of executive devolution to new regional authorities
(Devolution: The English Dimension (1976)). A year later the Government
announced that it had found no ˜broad consensus of popular support™ for devo-
lution in England, and the matter was dropped.
A Scotland and Wales Bill introduced in the House of Commons in 1976
provided for directly elected assemblies in Scotland and Wales: the Scottish
Assembly would have legislative powers, while the Welsh Assembly would have
executive powers only, to be exercised within a framework of Westminster
legislation. The bill was strongly contested, made little progress and was with-
drawn. A fresh start was made after the Government had concluded a bargain
with the Liberal Party (the ˜Lib-Lab™ pact of 1977“78) and separate devolution
bills for Scotland and Wales were passed by Parliament in 1978. It was a condi-
tion of each bill that its provisions should not take e¬ect unless approved by
40 per cent of the electorate in, respectively, Scotland and Wales. After Royal
Assent both Acts were submitted to referendums as so required and, since the
40 per cent threshold was achieved in neither country, the Acts were repealed,
as provided, by Orders in Council.
Devolution remained on the political agenda despite the loss of the Scotland
and Wales Acts. In Scotland, in particular, where 52 per cent of those voting
in the referendum (albeit only 33 per cent of the electorate) had been in favour
of putting the Scotland Act 1978 into e¬ect, there was continuing and
189 Devolution and the structure of the UK


substantial support for the revival of the devolution project. Such support
grew through the 1980s and early 1990s, as Scotland saw itself as governed by
a government it did not vote for, and which showed little regard for the eco-
nomic priorities of the Scots. The Government™s apparent non-reaction to the
collapse of ship-building on the Clyde and to the economic hardships that
resulted for Glasgow, and its imposition of the hated poll tax (or community
charge) one year earlier in Scotland than in England and Wales were merely
the headlines in a prolonged story of Scotland™s disa¬ection from British gov-
ernment. In the 1950s, half Scotland™s MPs were Conservatives. After the 1987
and 1992 general elections fewer than a dozen of Scotland™s (then) seventy-
two MPs were Conservatives and in the 1997 election the Conservatives were
wiped out altogether, as not a single Tory MP was returned from a Scottish
constituency. In the 1980s and 1990s Scotland was governed by the Conser-
vatives because the majority of English MPs were Conservative and despite the
fact that, within Scotland, there were clear and overwhelming majorities in
favour of what, in British terms, were then the opposition parties. (See further
A Marr, The Battle for Scotland (1992), chs 5, 6.)
Scotland did not simply take all of this lying down. A remarkable and broadly
constituted Scottish Constitutional Convention convened in 1989, composed of
Scottish Labour and Liberal Democrat MPs together with representatives of
local authorities, churches, trade unions and other bodies. (The Conservative
Party and the Scottish National Party declined to take part, the latter on the
ground that the Convention resolved to focus on devolutionary solutions that
envisaged Scotland remaining in the United Kingdom; the SNP desires to see an
independent Scottish state, outside of the United Kingdom but remaining in the
European Union.) The ¬rst act of the Convention was to adopt a Claim of Right
for Scotland which declared as follows:


We, gathered as the Scottish Constitutional Convention, do hereby acknowledge the sover-
eign right of the Scottish people to determine the form of Government best suited to their
needs, and do hereby declare and pledge that in all our actions and deliberations their inter-
ests shall be paramount.
We further declare and pledge that our actions and deliberations shall be directed to the
following ends: to agree a scheme for an Assembly or Parliament for Scotland; to mobilise
Scottish opinion and ensure the approval of the Scottish people for that scheme; and to assert
the right of the Scottish people to secure the implementation of that scheme.


As Neil MacCormick has suggested (˜Sovereignty or subsidiarity? Some com-
ments on Scottish devolution™ in A Tomkins (ed), Devolution and the British
Constitution (1998), p 5), this is a ˜bold, categorical, and even revolutionary™
statement of intent. But it was meant as no mere piece of grandstanding rhetoric,
as the work of the Convention went on to demonstrate. After a lengthy period
of discussion and consultation the Convention agreed in 1995 on a scheme of
190 British Government and the Constitution


devolution, published in its report (and, again, note the boldness of the claim),
Scotland™s Parliament: Scotland™s Right. The opening words of the report were:

This report is about practical intent. It says, ˜Here is what we are going to do™, not ˜here is
what we would like™. Those who seek inspirational home rule rhetoric are respectfully
directed elsewhere . . . We have moved on. We regard the argument in principle as com-
pelling. The longing of the people of Scotland for their own Parliament rings clear and true
every time opinion is sounded. We believe that the momentum for change is now too great
to deny . . .

What Scotland would have done about this had the Conservatives enjoyed
a ¬fth successive general election victory in 1997 we will never know. In the
event, of course, Tony Blair™s Labour Party won with a landslide majority and
a manifesto commitment to create a Scottish Parliament ˜¬rmly based on the
agreement reached in the Scottish Constitutional Convention™ (Because Britain
Deserves Better (1997), p 33). True to its word, the Labour Government™s
proposals for Scottish devolution, contained in the White Paper, Scotland™s
Parliament (Cm 3658/1997), were indeed broadly based on the scheme outlined
in Scotland™s Parliament: Scotland™s Right.
Signi¬cantly, there was no equivalent preparation of a devolutionary scheme
for Wales. Nor was there political pressure of a like intensity for a restructuring
of the system of government of Wales. But the Labour Party had committed
itself before the 1997 general election to devolution of powers to Wales as well
as to Scotland, and the new Government™s project for Welsh devolution was set
out in its White Paper, A Voice for Wales (Cm 3718/1997).
The proposals in the White Papers were submitted to referendums in the two
countries in September 1997 in accordance with the Referendums (Scotland and
Wales) Act 1997 (which did not stipulate a threshold such as that which had
shackled the earlier devolution project). In Scotland, in a turnout of 60.4 per cent,
74.3 per cent of those voting agreed that there should be a Scottish Parliament,
and 63.5 per cent also agreed that the Parliament should have tax-varying powers.
The Welsh electorate voted only on the question whether there should or should
not be a Welsh Assembly. In a turnout of 50 per cent, 50.3 per cent of those voting
agreed that there should be a Welsh Assembly, while 49.7 per cent disagreed “ a
narrow margin of a¬rmative votes but a signi¬cant shift from the 1979 Welsh
referendum result, when a mere 20 per cent of those voting (in a turnout of
59 per cent) had been in favour of devolution.
The Scotland Bill and the Government of Wales Bill which were introduced in
the House of Commons at the end of 1997 were based on the White Papers. Each
bill received the royal assent in the following year. In that year, too, the Northern
Ireland Act 1998 was enacted, devolving powers to an elected Assembly in
Northern Ireland. One commentator has suggested that these Acts brought about
˜the most radical constitutional reform this country has seen since the Great
Reform Act of 1832™ (V Bogdanor in University of Cambridge Centre for Public
Law, Constitutional Reform in the United Kingdom (1998), p 9).
191 Devolution and the structure of the UK


As we shall see in more detail below, the progress of devolution has been
markedly di¬erent in the three countries since 1998. Devolution in Northern
Ireland has been suspended, reinstated and suspended again on several occa-
sions, as the various parties have cooperated and fallen out with each other over
aspects of security policy and other matters. Devolution in Wales was subjected
to a major review in 2002“04 (see www.richardcommission.gov.uk), leading to
fresh legislation in 2006 that signi¬cantly reformed the 1998 settlement: see the
Government of Wales Act 2006, replacing the Government of Wales Act 1998.
In comparison with Northern Ireland and Wales, Scottish devolution has been
relatively untroubled “ so far.
The essential features of the devolution settlement are now to be found in
the Scotland Act 1998, the Government of Wales Act 2006 and the Northern
Ireland Act 1998. These are complemented by a variety of more or less formal
arrangements, principally a series of agreements between the United Kingdom
Government and the devolved administrations which set out the principles on
which they conduct their mutual relations. The agreements ˜are not legally
binding but there is nevertheless a clear expectation that the spirit and letter will
be observed by all parties™ (Scotland O¬ce Departmental Report, Cm 5120/2001,
para 3.2).
The main agreement is the Memorandum of Understanding, Cm 5420 (as
revised in 2001), which provides for the establishment of a Joint Ministerial
Committee as a consultative forum for ministers of the United Kingdom
Government, Scottish Ministers, Welsh Secretaries and Northern Ireland
ministers. The Joint Ministerial Committee considers matters of common
interest or overlapping responsibilities and seeks to resolve inter-governmental
disputes. In addition there are four multilateral ˜overarching™ agreements or
Concordats, which deal respectively with arrangements for cooperation on
European Union business, international relations, ¬nancial assistance to indus-
try and United Kingdom-wide statistical work. The Department for Consti-
tutional A¬airs has agreed on Concordats with the administrations for
Scotland and Wales, ˜to provide the framework to guide future working rela-
tionships™ between the department and the devolved administrations. Other
United Kingdom government departments have also concluded bilateral
Concordats with those administrations. Although Concordats are not intended
to be legally binding, they may turn out to be justiciable in proceedings for judi-
cial review: for instance, a Concordat might give rise to a legitimate expectation
that its terms would be properly adhered to. (On legitimate expectations see
below, pp 688“91.) (See further Rawlings, ˜Concordats of the constitution™
(2000) 116 LQR 257; Poirier, ˜The functions of intergovernmental agreements™
[2001] PL 134; House of Lords Select Committee on the Constitution,

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