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( 155 .)


Devolution: Inter-Institutional Relations in the United Kingdom, HL 28 of
2002“03; A Trench, ˜The more things change the more they stay the same™, in
A Trench (ed), Has Devolution Made a Di¬erence? (2004), ch 7 and A Trench,
˜Intergovermental relations within the UK: the pressures yet to come™, in
A Trench (ed), The Dynamics of Devolution (2005), ch 7.)
192 British Government and the Constitution

The terms of the devolution settlements for Scotland, Wales and Northern
Ireland are considered in the next section.

2 The countries of the United Kingdom
The United Kingdom is a multi-national state in which the inhabitants of
Scotland, Wales and Northern Ireland identify themselves not only as ˜British™
but also “ indeed often exclusively “ as Scots, Welsh, Ulstermen or Irish. (See
R Rose, Understanding the United Kingdom (1982), p 14, Table 1.1. Cf British
Social Attitudes, 13th Report (SCPR 1996), chs 1 and 7; 17th Report (SCPR
2000), ch 8; the MORI poll reported in The Economist, 3 October 1998, p 32;
and Heath and Kellas, ˜Nationalisms and constitutional questions™, Scottish
A¬airs (Special Issue 1998), p 110.) In law there is, however, a single British cit-
izenship for all those su¬ciently connected by birth or descent with the United
Kingdom (British Nationality Act 1981).

Richard Rose, ˜The United Kingdom as a Multi-National State™,
in Richard Rose (ed), Studies in British Politics (3rd edn 1976),
pp 115“16

Legally, there is no such thing as an English regime. In international law as in the title of the
Queen, the regime is the United Kingdom of Great Britain and Northern Ireland, a compos-
ite of jurisdictions joined in one state. The prolonged and continuing refusal of some Irish
people to give allegiance to this regime has meant that at no time has it been fully legiti-
mate everywhere in the realm. Scotland and Wales have not shown the same measure of
political disaffection and violence, but the resurgence of distinctive parties such as the
Scottish Nationalists and Plaid Cymru in the 1960s is a reminder that generalisations about
political allegiance in the United Kingdom cannot automatically be extended beyond
England™s boundaries.
Unfortunately, many who write about British politics confuse England, the largest part,
with the whole of the United Kingdom, or ignore any possibility of differences within it. For
instance, Bagehot™s study of The English Constitution, published in 1867, gives no hint of the
constitutional problems that followed the Fenian Rising in Ireland in the same year. Latter-
day writers have also ignored differences between English and United Kingdom politics. LS
Amery, an active politician during the Irish troubles, gave careful attention in his Thoughts
on the Constitution (1953), to the integration of colonies into the British Empire and
Commonwealth, but none to the problems of the integration and disintegration of parts of
the United Kingdom.

The structure of the United Kingdom as we now know it dates from 1922, when
southern Ireland withdrew from the Union as the Irish Free State.
Legislation of the United Kingdom Parliament has usually extended to all
parts of the Kingdom, but some public Acts have not extended to Northern
193 Devolution and the structure of the UK

Ireland, or have applied only to Scotland, Wales or Northern Ireland (rarely
only to England). The former Parliament of Northern Ireland (1921“72)
enacted many laws for the province which are still in force. The devolution
arrangements of 1998, while not restricting the legal competence of Parliament
to legislate for the whole of the United Kingdom, do a¬ect the exercise of its
power in respect of devolved matters: the Government undertook that it would
˜proceed in accordance with the convention that the UK Parliament would not
normally legislate with regard to devolved matters except with the agreement of
the devolved legislature™ (Memorandum of Understanding, Cm 5240/2001, para
13). Devolution has increased the diversity of the law in force in di¬erent parts
of the Kingdom.
There is freedom of movement throughout the United Kingdom for those
settled there. This was quali¬ed by the Prevention of Terrorism (Temporary
Provisions) Act 1989, by which a person suspected of terrorism might be
excluded either from Great Britain or from Northern Ireland (or from the whole
of the United Kingdom). This draconian power was allowed to lapse when
the Act was partially renewed in 1998 and it did not reappear in the Terrorism
Act 2000.

(a) England
England is the largest of the four countries of the United Kingdom, and its
population of 50.1 million is about 84 per cent of the total United Kingdom
population of 60.2 million. While there are no signi¬cant nationalist or sepa-
ratist political movements in England, there are cultural di¬erences associated
with particular regions, and di¬erences both cultural and linguistic among the
ethnic minority populations of English cities.
England has 529 of the 646 seats in the House of Commons, and is
underrepresented in comparison with the rest of the United Kingdom: if
average constituency electorates were equal throughout the United Kingdom,
England would have 541 seats.
In the central government of the United Kingdom there is no separate
department for England like the ˜territorial™ departments for Scotland, Wales
and Northern Ireland, but the work of several departments “ in particular,
Environment, Food and Rural A¬airs, Health, Transport, Education and
Skills “ is predominantly concerned with the a¬airs of England because the cor-
responding functions in the other countries of the United Kingdom are largely
With the First World War there began a process of ˜deconcentration™ of
administrative functions to outstations of Whitehall departments in regions of
England (and in Scotland and Wales). (This is sometimes described as ˜admin-
istrative devolution™. It is not the same thing as a ˜decentralisation™ of powers to
autonomous bodies outside central government.) Regional o¬ces deliver the
services of departments and agencies, in some cases through a network of local
194 British Government and the Constitution

o¬ces, in administering social security bene¬ts, employment services, agricul-
tural subsidies and grants, assessment and collection of taxes, road construction
and maintenance, and so on. A great many decisions a¬ecting individuals
are taken by these regional or local units of government. As Richard Rose
remarks, ˜British government is not a set of ministers gathered around a table
in 10 Downing Street; it is the totality of employees working in thousands of
government o¬ces throughout the United Kingdom™ (Ministers and Ministries
(1987), p 269).
The boundaries of regional administration were established ad hoc and they
have varied to suit the services of di¬erent governmental bodies: there was no
single organisational map of English regions. A substantial measure of consis-
tency was achieved in 1994 when the Government established ten new inte-
grated regional o¬ces in England, each headed by a regional director and
sta¬ed by civil servants. The nine Government O¬ces for the Regions are
responsible for implementing the regional programmes of ten participating
departments, in such ¬elds as employment, the environment, public health,
trade and industry and transport. They take a cross-departmental approach and
provide ˜a regional perspective to inform the development and evaluation
of policy™.
Government policy for the regions was taken further by the Regional
Development Agencies Act 1998 which established Regional Development
Agencies, intended to be ˜economic powerhouses™ for the regions of England.
The eight Agencies are non-departmental public bodies responsible to minis-
ters and are required ˜to promote sustainable development and social and phys-
ical regeneration and to coordinate the work of regional and local partners
[local authorities and interest groups] in areas such as training, investment,
regeneration and business support™ (Building Partnerships for Prosperity,
Cm 3814/1997. The purposes of a Regional Development Agency are set out in
s 4 of the Act.) London has its own development agency, accountable to the
mayor, with powers and functions similar of those of the Regional Development
The work of the Regional Development Agencies is scrutinised by regional
chambers known as Regional Assemblies (representing local authorities, busi-
nesses, trade unions and other interests) that have been established in all eight
regions. Development Agencies are required by the Secretary of State to consult
the Assemblies in the exercise of their functions and to take account of the views
expressed (Regional Development Agencies Act 1998, s 8). As regional planning
bodies the Assemblies have responsibilities for the development of strategic
planning and transport policies in their regions. They are said to ˜represent the
voices of regions to Whitehall and European institutions™.
The Government proposed in 2002 that the Regional Assemblies should be
directly elected where support for this was expressed by the people of the
regions in referendums. (See Your Region, Your Choice: Revitalising the English
Regions, Cm 5511/2002.) The emergence of a democratic regional level of
195 Devolution and the structure of the UK

government in England would have gone some way to redress the imbalance in
the asymmetrical devolutionary arrangements for the United Kingdom. But in
the ¬rst such referendum, held in the North East region in 2004, the proposal
to establish an elected Regional Assembly was convincingly defeated, where-
upon plans for further regional referendums were suspended. England, as
Robert Hazell has remarked, ˜remains the gaping hole in the devolution settle-
ment™ (An Unstable Union: Devolution and the English Question (2000), p 7).
A House of Commons Standing Committee on Regional A¬airs was set up
in 1975 to consider matters relating to the regions of England. The raison d™être
of the committee was to provide more time for debates on regional questions
than was available on the ¬‚oor of the House, but there was an unenthusiastic
response to its establishment and after 1978 it did not meet for over twenty
years. The committee was reconstituted under a revised standing order of the
House (SO 117) in April 2000 to consider ˜any matter relating to regional a¬airs
in England which may be referred to it™. It consists of thirteen members rep-
resenting English constituencies nominated by the House™s Committee of
Selection; any other member representing an English constituency may take
part in its proceedings but may not vote. Ministers may appear before the com-
mittee to make statements and to be questioned on them. A motion calling for
a meeting of the Committee must be moved by a Minister of the Crown and it
does not meet often.
See further Hazell, ˜The English question: can Westminster be a proxy for
an English parliament?™ [2001] PL 268; R Hazell (ed), The English Question
(2006); M Russell and G Lodge, Westminster and the English Question (2005);
M Sandford and P Hetherington in A Trench (ed), The Dynamics of Devolution
(2005), ch 5; Had¬eld, ˜Devolution, Westminster and the English question™
[2005] PL 286.

(b) Scotland
(i) Scotland in the Union
Scotland covers about one-third of the area of the United Kingdom and has a
population of 5.1 million or about 8.5 per cent of the total United Kingdom
Scotland and England, under the same Crown from 1603 but with separate
institutions of government, were joined in the United Kingdom of Great Britain
in 1707 by the Treaty and Acts of Union. Articles of Union, agreed in 1706 by
Commissioners acting on behalf of the Parliament of each country, were
adopted by Acts of Union passed by the English Parliament in 1706 and the
Scottish Parliament in 1707. In terms of these instruments the two Parliaments
were superseded by a Parliament of Great Britain “ ˜a new Parliament for a new
State™ (Scottish Law Commission, Memorandum No 32 (1975), p 16).
In entering the Union the Scots were concerned to ensure, as far as they could,
that certain of their cherished rights and institutions should not be at risk from
196 British Government and the Constitution

a Parliament in which English members would be in a majority. The Union leg-
islation accordingly declared, as a ˜fundamental and essential condition™ of the
union, that the Presbyterian religion and Church of Scotland should ˜remain
and continue unalterable™ in Scotland, and a¬rmed that the Scottish superior
courts (Court of Session and Court of Justiciary) should remain ˜in all time
coming™ with their authority and privileges. While the Parliament of Great
Britain was authorised to alter the laws of Scotland, it was stipulated that no
alteration should be made in private law ˜except for evident utility of the sub-
jects within Scotland™. From a modern point of view the Acts of Union
are defective in that they include no safeguards against violation of their
˜fundamental™ provisions, nor any special machinery for amending these as
changed conditions might require. At least one of the fundamental provisions,
obliging professors of Scottish universities to make a formal submission to
Presbyterianism, was repealed by the Universities (Scotland) Acts 1853 and
1932; the issue was not a contentious one and the Scots may be said to have
acquiesced in the repeal.
It would seem to follow from the doctrine of parliamentary sovereignty that
an Act of Parliament is valid even if it violates fundamental provisions of the
Union legislation. Against this it is argued that the Acts of Union are constituent
Acts which, in creating the Parliament of the United Kingdom, imposed limita-
tions upon its powers which remain e¬ective. English constitutional lawyers have
not in general accepted this argument. It has been heard in the Scottish courts and
although it has not prevailed there, neither has it been summarily dismissed.

MacCormick v Lord Advocate 1953 SC 396 (Court of Session)
The chairman and secretary of the Scottish Covenant Association petitioned the
Court of Session for a declaratory order that a proclamation describing the
Queen as ˜Elizabeth the Second of the United Kingdom of Great Britain™ was
illegal. They argued that the adoption of the numeral ˜II™, since it implied that
Elizabeth I had been Queen of Great Britain, was contrary to Article I of the
Treaty and Acts of Union which brought about the union of the two Kingdoms
in 1707. For the Crown the Lord Advocate denied that the proclamation con-
¬‚icted with Article I, and maintained further that the use of the numeral ˜II™ was
authorised by the Royal Titles Act 1953. The petitioners contended that the Act
could not validly permit the violation of a fundamental provision of the Treaty.
The Lord Ordinary (Lord Guthrie) dismissed the petition on the grounds
(1) that the Royal Titles Act had authorised the adoption of the numeral, and
an Act of Parliament could not be challenged as being in breach of the Treaty or
on any other ground; (2) that in any event the Treaty did not expressly or
impliedly prohibit the use of the numeral; and (3) that the petitioners had no
su¬cient interest to bring the proceedings.
The petitioners™ appeal to the First Division of the Inner House was
dismissed, the court agreeing with Lord Guthrie that there was nothing in
197 Devolution and the structure of the UK

Article I of the Treaty against the use of the numeral, and that the petitioners
had no title to sue. The court was of the opinion that the Royal Titles Act had
no relevance in the case: it was enacted only after the proclamation of the Queen
as Elizabeth II, and was not concerned in any way with the numeral adopted.
The Lord President nevertheless expressed his opinion on the questions of the
validity of an Act of Parliament that con¬‚icted with the Treaty, and the juris-
diction of the courts if such an issue were to arise.

Lord President (Cooper): . . . The principle of the unlimited sovereignty of Parliament is a
distinctively English principle which has no counterpart in Scottish constitutional law. It
derives its origin from Coke and Blackstone, and was widely popularised during the nine-
teenth century by Bagehot and Dicey, the latter having stated the doctrine in its classic form
in his Law of the Constitution. Considering that the Union legislation extinguished the
Parliaments of Scotland and England and replaced them by a new Parliament, I have diffi-
culty in seeing why it should have been supposed that the new Parliament of Great Britain
must inherit all the peculiar characteristics of the English Parliament but none of the Scottish
Parliament, as if all that happened in 1707 was that Scottish representatives were admitted
to the Parliament of England. That is not what was done. Further, the Treaty and the associ-
ated legislation, by which the Parliament of Great Britain was brought into being as the suc-
cessor of the separate Parliaments of Scotland and England, contain some clauses which
expressly reserve to the Parliament of Great Britain powers of subsequent modification, and
other clauses which either contain no such power or emphatically exclude subsequent alter-
ation by declarations that the provision shall be fundamental and unalterable in all time
coming, or declarations of a like effect. I have never been able to understand how it is pos-
sible to reconcile with elementary canons of construction the adoption by the English con-
stitutional theorists of the same attitude to these markedly different types of provisions.


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( 155 .)