<<

. 49
( 155 .)



>>

stages are provided for in the Government of Wales Act 2006. The second stage
consists of an Order in Council mechanism whereby Parliament may confer
enhanced legislative powers on the Assembly in relation to speci¬ed subject
matters which fall within devolved ¬elds. Such Orders in Council will enable
the Assembly to pass its own legislation within the scope of the powers
delegated by Parliament. Such legislation will be known as ˜Assembly
Measures™ (ss 93“102).
It is important to note that, under these provisions, the 2006 Act does not
itself confer additional powers on the Assembly. Rather, it provides a mecha-
nism whereby such powers can be conferred on a case by case basis as appro-
priate, with parliamentary consent. The ˜devolved ¬elds™ with regard to which
such Orders in Council may be made are listed in Schedule 5 to the Act. They
are: agriculture, ¬sheries, forestry and rural development; ancient monuments
and historic buildings; culture; economic development; education and training;
the environment; ¬re and rescue services and ¬re safety; food; health and
health services; highways and transport; housing; local government; public
administration; social welfare; sport and recreation; tourism; town and country
planning; water and ¬‚ood defence; and the Welsh language. The e¬ect of an
individual Order in Council will be to insert, under the relevant ˜¬eld™ heading
in Schedule 5, a description of the ˜matter™ in relation to which the Assembly is
to be given enhanced legislative competence, together with any speci¬c restric-
tions necessary accurately to de¬ne its scope (ss 93“5).
The Act provides for the Assembly and both Houses of Parliament to approve
draft Orders in Council before they come into force. It is supposed that Orders in
Council will normally be proposed by the Welsh Ministers. Where this is so, the
following procedure will be adopted: the Order in Council will be drafted fol-
lowing discussion between the Welsh Ministers, the relevant UK government
department(s) and the Wales O¬ce. This may be followed by prelegislative
scrutiny either by the Assembly or in Parliament (or both) “ these are matters for
the Assembly and the Houses of Parliament respectively, and are not prescribed
227 Devolution and the structure of the UK


by the 2006 Act. There will then follow the formal, statutory processes for the
Assembly and both Houses of Parliament to give their approval (or otherwise) to
the Order in Council. No amendment will be possible at this stage, as both the
Assembly and Parliament will have to approve an identical text (ss 96“8).
Assembly Measures and (as under the 1998 Act) acts and decisions of the
Welsh Ministers will be unlawful if they are incompatible with Community law
or with Convention rights (ss 80, 81, 94). Provision is made for the Supreme
Court (once it comes into being), at the instigation of either the Counsel
General or the Attorney General, to review the legality of proposed Assembly
Measures (s 99). Additionally, a potentially divisive power is conferred by
section 101 on the Secretary of State to make an order preventing an Assembly
Measure from coming into force if he has reasonable grounds to believe that it
˜would have an adverse e¬ect on any matter which is not speci¬ed in . . .
Schedule 5™ (ie, on any matter that is not devolved to the Assembly), that
it ˜might have a serious adverse impact on water resources in England™ or that it
˜would have an adverse e¬ect on the operation of the law as it applies in
England™. Is this last criterion so broadly drawn that it amounts to an e¬ective
veto on the part of the Secretary of State?
The changes to Welsh devolution so far considered (in relation to the sepa-
ration of powers, to electoral arrangements and to legislative powers) apply
with e¬ect from the day after the 2007 Assembly elections (s 161).
The third stage in the enhancement of the Assembly™s legislative powers is to
confer primary legislative powers on the Assembly to pass ˜Assembly Acts™ within
devolved ¬elds (ss 103“16). Under the terms of the Act, however, these powers
cannot come into force unless and until they have been approved in a further
Welsh referendum (s 103). If they come into force the Assembly™s powers to pass
Assembly Measures would lapse. In the event that ˜Assembly Acts™ powers do
come into force, there will be a notable di¬erence between the structure of the
Welsh Assembly™s primary legislative powers and the structure of such powers in
respect of the Scottish Parliament. As we saw above, the scheme under the
Scotland Act 1998 is for the reserved powers (those remaining at Westminster) to
be listed, and for all remaining powers to be devolved. Under the Government of
Wales Act 2006, by contrast, it is those powers devolved to Cardi¬ that are
expressly listed (in Schedule 7 to the Act). The rationale behind this di¬erence,
according to a joint statement by the Secretary of State for Wales and the First
Minister for Wales (given as evidence to the House of Commons Welsh A¬airs
Committee, Better Governance for Wales, HC 551 of 2005“06) was that:


If the Assembly had the same general power to legislate as the Scottish Parliament then
the consequences for the unity of the England and Wales legal jurisdiction would be consid-
erable. The courts would, as time went by, be increasingly called upon to apply fundamen-
tally different basic principles of law and rules of general application which were different
in Wales from those which applied in England. The practical consequence would be the need
228 British Government and the Constitution


for different systems of legal education, different sets of judges and lawyers and different
courts. England and Wales would become separate legal jurisdictions. In order to avoid this
result the simplest solution is to . . . [limit] the legislative competence of the Assembly to
specified subjects.


(See further on these issues, Jones and Williams, ˜Wales as a jurisdiction™ [2004]
PL 78.)
Whether the Government of Wales Act 2006 will lead to a settlement for
Wales that proves to be any more durable or satisfactory than was the 1998
scheme, we shall have to wait and see. Rawlings™ verdict after the ¬rst four years
of Welsh devolution was that among its ˜basic defects™ were ˜an underlying lack
of stability™, ˜an excessive fragmentation of powers™, ˜a strange internal archi-
tecture™ and ˜a failure of constitutional vision™ (Delineating Wales (2003), p 20).
How many of these have been addressed by the 2006 reforms? And how many
have been resolved? Rawlings himself was cautious in his initial assessment.
Writing of the Government™s White Paper that preceded the 2006 Act, he wrote
that ˜as a matter of institutional design, interim constitution is about to be piled
on interim constitution in Welsh devolution . . . [H]astening slowly, but not in
a way calculated to make interim arrangements easy to understand, is an apt
characterisation of the next phase™ (˜Hastening slowly: the next phase of Welsh
devolution™ [2005] PL 824, 851“2).


(d) Northern Ireland
Northern Ireland, a land of 5,000 square miles, has a population of 1.7 million
or 2.5 per cent of the total United Kingdom population. Ruled, if not entirely
controlled, by the English Crown since the twelfth century, all Ireland was
united with Great Britain by Acts of Union of the British and Irish Parliaments
in 1800. (The Act of the Irish Parliament was passed in unedifying circum-
stances but was doubtless formally valid.) The Acts of Union ended the life of
the Irish Parliament and transferred its authority to a Parliament of the United
Kingdom, which was to include Irish members. The two countries were to be
united into one Kingdom ˜for ever after™; and the union of the Churches of
England and Ireland was declared to be established for ever as ˜an essential and
fundamental part™ of the Union.
As with the earlier Acts of Union between England and Scotland (see above),
it can be argued that the Acts of Union of 1800 were constituent Acts of a new
(United Kingdom) Parliament which set legal limits to the powers of that
Parliament. But in this instance the argument has not fared well. The Irish
Church Act 1869 disestablished the Church of Ireland, dissolving its union with
the Church of England, notwithstanding the explicit provision of the Acts of
Union. A challenge to the validity of the Act (although not expressly for its non-
conformity with the Acts of Union) was unsuccessful: Ex p Canon Selwyn (1872)
229 Devolution and the structure of the UK


36 JP 54. The Acts of Union were abrogated in a fundamental respect in 1921“22
when the Irish Free State was separated from the United Kingdom as a free
dominion within the Commonwealth. (See the Irish Free State (Agreement)
Act 1922, the Irish Free State Constitution Act 1922 and the Irish Free State
(Consequential Provisions) Act 1922.) It became a republic with the name
Éire or, in the English language, Ireland, in 1937 and withdrew from the
Commonwealth in 1949.
The six counties of the north-east remained within the United Kingdom,
with their own Parliament and government in Belfast established by the
Government of Ireland Act 1920. The Ireland Act 1949 included, in statutory
form, a political assurance to the Unionist (mainly Protestant) community
of Northern Ireland which was rea¬rmed in subsequent legislation and
now appears in the following terms in section 1(1) of the Northern Ireland
Act 1998:

It is hereby declared that Northern Ireland in its entirety remains part of the United Kingdom
and shall not cease to be so without the consent of a majority of the people of Northern
Ireland voting in a poll held for the purposes of this section in accordance with Schedule 1.


Subsection (2) makes provision for action to be taken if the vote in such a poll
is in favour of Northern Ireland becoming part of a united Ireland:

But if the wish expressed by a majority in such a poll is that Northern Ireland should cease to
be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall
lay before Parliament such proposals to give effect to that wish as may be agreed between
Her Majesty™s Government in the United Kingdom and the Government of Ireland.


(i) Devolved government 1921“72
The constitution of Northern Ireland established by the Government of Ireland
Act 1920 endured until 1972. The Act provided for a system of devolved gov-
ernment, with a bicameral Parliament of Northern Ireland and an Executive
headed by a Governor as the representative of the Crown.
The Parliament of Northern Ireland consisted of a Senate and a House of
Commons. Elections to the House of Commons were by proportional repre-
sentation (the single transferable vote system) until 1929, and from then by the
plurality (˜¬rst past the post™) system used in UK parliamentary elections. The
United Kingdom Parliament retained its entire sovereignty in matters a¬ecting
Northern Ireland, but there was an extensive transfer of legislative power to the
Parliament at Stormont in Belfast, the Act specifying the subjects to be retained
at Westminster rather than those to be transferred. The convention was soon
established that the United Kingdom Parliament should not legislate for
Northern Ireland in the ˜transferred™ area unless requested to do so by the
Northern Ireland Government. Representation of Northern Ireland in the
230 British Government and the Constitution


United Kingdom Parliament continued, but with a reduced number of seats
while the system of devolved government remained in place (thirteen until
1948, thereafter twelve).

Report of the Royal Commission on the Constitution (Kilbrandon
Report), vol 1, Cmnd 5460/1973

172. . . . [T]he constitution was placed under . . . stresses stemming from the division of
the population into two sharply distinct communities, a majority, predominantly Protestant
and in favour of the maintenance of the union with Great Britain, and a minority, predomi-
nantly Roman Catholic and opposed to the union. For the whole period of the existence of
the Northern Ireland Parliament, politics in the province were dominated by this single issue.
Parliamentary elections were concerned almost exclusively with it, and only those political
parties whose positions in relation to it were clearly defined were able to attract substantial
support. . . .
1251. . . . [T]he Act applied to Northern Ireland the system of Parliamentary democracy in
use at Westminster, which depends for its smooth working on an alternation between
Government and Opposition. The rule that the ˜winner takes all™ “ that the Government is
formed exclusively from the party that has a majority, be it large or small, in the legislature,
and that the Opposition is totally excluded “ is far easier to accept when electoral victory passes
from party to party. Balance and equity are achieved by alternation. But in Northern Ireland
the winner was always the Unionist Party. There was nothing contrived or improper about this;
whatever may have been true, from time to time and from place to place, about local gov-
ernment elections, there is no room for doubt that at every general election for the Northern
Ireland House of Commons a clear majority of the electors deliberately intended the Unionist
Party to form the government. The permanent majority was a permanent and cohesive major-
ity in the electorate. But such a result, so often repeated, and apparently so likely to continue,
inevitably produced great dissatisfaction in the minority and raised the question of the suit-
ability of that particular form of government in the special circumstances of Northern Ireland.

Despite these ¬‚aws the Kilbrandon Commission was in agreement with
other commentators who judged the devolved or ˜home rule™ government of
Northern Ireland to have been broadly successful in providing laws and admin-
istration suitable to the particular needs of the province. It had been an instru-
ment of progress at all events ˜in the large areas of government which were
una¬ected, or at least were not dominated, by the community problem™ (para
1264). But a di¬erent aspect of the period of home rule was emphasised in the
1984 Report of the New Ireland Forum (composed of representatives of democ-
ratic nationalist parties of North and South). The identity of the nationalist
community in the North, it said (para 3.9), had been e¬ectively disregarded:

The symbols and procedures of the institutions to which nationalists are required to give
allegiance have been a constant reminder of the denial of their identity. . . . [T]hey have
had virtually no involvement in decision-making at the political level. For over 50 years they
231 Devolution and the structure of the UK


lived under a system of exclusively unionist power and privilege and suffered systematic
discrimination. They were deprived of the means of social and economic development, expe-
rienced high levels of emigration and have always been subject to high rates of
unemployment.


Civil liberties were not well protected during this period. The Civil Authorities
(Special Powers) Act (Northern Ireland) enacted by the Stormont Parliament in
1922 established a wide-ranging system of controls, including powers of arrest,
search, internment and the banning of organisations, which did not in
general prove to be amenable to successful challenge in the courts. (See eg,
McEldowney v Forde [1971] AC 632, of which case it has been said that it ¬nally
convinced the minority community of ˜the futility of pursuing the civil rights
campaign through the courts™: K Boyle et al, Law and State: the Case of Northern
Ireland (1975), p 15.)
For the whole period 1921“72 the Unionist Party had an absolute majority
in the Northern Ireland House of Commons. (No such long-lasting single-
party hegemony has been known at Westminster since the Reform Act of
1832.) The dominance of the Unionist Party extended to local government,
where Unionist majorities were sometimes assured by gerrymandering and
the manipulation of housing allocations. In¬‚exible single-party rule con-
tributed to the resentments of a disadvantaged Catholic community in the
poorest part of the United Kingdom, and these resentments were at last to
explode in the so-called ˜troubles™ “ the political violence and terrorism “ of
1968 and the following years.
Between 1968 and 1972 some important constitutional reforms were
instituted by the Northern Ireland Government, under a degree of pressure
from Whitehall. Electoral law was reformed and local government reorgan-
ised. A Northern Ireland Parliamentary Commissioner for Administration
and a Commissioner for Complaints were appointed to investigate com-
plaints of maladministration by public authorities. A Community Relations
Commission was set up to promote action to improve community relations,
and a Housing Executive took over responsibility for public housing in the
province. Despite these reforms, the nationalist community was ˜still discrim-
inated against in social, economic, cultural and political terms™ (Report of the
New Ireland Forum (1984), para 3.17) and the province experienced continu-
ing violence and disorder, the despatch of troops and the reintroduction of
internment. The deepening crisis elicited increasing involvement by the
United Kingdom Government in the a¬airs of Northern Ireland, and ¬nally
in March 1972 direct rule from Whitehall was imposed on the province. By
the Northern Ireland (Temporary Provisions) Act 1972 the Parliament of
Northern Ireland was prorogued, and provision was made for legislation by
Order in Council on the subjects within its competence. The powers of the
Northern Ireland Government were transferred to a Secretary of State for
Northern Ireland.
232 British Government and the Constitution


<<

. 49
( 155 .)



>>