DEVOLUTION

The word devolution is derived from a Latin word ‘devolvere’ which means to ‘roll down’. It’s a process of through which
powers are transferred from the Westminster to the different regions in UK. The devolution system in UK is asymmetric i.e.
it is found in different forms with varying powers. Like mayors in England only have executive powers; while Scotland, Wales
and Northern Ireland have executive and legislative powers. Hence devolution does not result in an entrenched power, and
the Westminster Parliament retains its sovereignty and can amend or roll back the devolved powers. Whereas in a federal
state, like USA, there is a symmetrical approach in power distribution amongst the states. The central government and the
states have its own authority. Hence, the states are sovereign in their own sphere, having independent sources of power.

The differentiating factor between devolution and federalism is the constitution. In USA, there is a codified constitution that
outlines the division of power between the states and the central government. Whereas in UK, there’s an un-codified
constitution which means that the Westminster Parliament has unlimited power and is not restricted to act in a certain way
with respect to devolved states. Having said that, the Sewel Convention provides that the Westminster Parliament will not
legislate on devolved states without their consent. But despite this, the UK Parliament retains the ultimate authority and
power to legislate on all the devolved states. In a federal state, the division of power is defined within the constitution.

The framework for devolution was originally instilled through the Scotland Act 1998, the Government of Wales Act 1998,
and the Northern Ireland Act 1998. These have been subsequently amended.

The devolution of Scotland, Wales, and Northern Ireland is based on their historical, political and constitutional
backgrounds. These have been granted different level of powers, and hence are distinct from each other. Scotland enjoys
the most devolved powers and often referred to as “devo max”. It carries legislative authority in areas like justice, health
and education. The Welsh government on the other hand has limited powers compared to Scotland, like it cannot legislate
on matters like justice. The devolved powers in Northern Ireland are unique from Scotland and Wales owing to the political
history it shares with the UK. The Westminster government, through ‘Good Friday’ or Belfast Agreement, gave control of
key areas such are health and education to Northern Ireland.

We will briefly discuss how the process of devolution in Scotland started and key developments since then and compare it
with Wales and Northern Ireland.

As mentioned above, Scotland is the largest devolved nations, as compared to Wales and Northern Ireland, both in terms of
population area. The Treaty of Union 1707 combined the Scottish Parliament and English Parliament. Since then, there had
been strong nationalist support. The Royal Commission of Constitution, also known as ‘Kilbrandon Commission’,
recommended in 1973 a directly elected Scottish Assembly. This led to passing of the Scotland Act 1978 which was subject
to a successful referendum. The subsequent referendum in 1979 did not meet the threshold of 40% required for the
devolution. Then later in 1989, a Scottish Constitution Convention prepared a plan for a future Scottish Parliament. Then a
white paper ‘Scotland’s Parliament’, in 1997, further laid the roots for devolution. Owing to this, a referendum in 1997 was
held where 74% voted for a Scottish Parliament and 63% voted that it should have tax varying powers. This subsequently
led to passing of Scotland Act 1998. Then further powers were devolved through Scotland Act 2012 mainly in relation to
tax.An important development happened in 2014 where a referendum on complete independence of Scotland was held,
where 53% percent voted against an independent Scotland. But this has not stoped the Scottish National Party (SNP) from
calling for a second referendum.

A similar sort of events took place in devolving powers to Wales. It was instigated through Wales Act 1998, and the powers
were subsequently enhanced through Acts of 2006, 2014, and 2017. The Welsh Parliament is now referred to as Welsh
Senedd.

The process of devolution was different in Northern Ireland, as compared to Scotland and Wales, owing to its unsettled
history with the UK. There were sectarian conflicts in Northern Ireland between 1968 and 1998, also know as ‘The
Troubles’. This led to a direct rule by the Westminster Parliament. Subsequently, an agreement was reached between the
Northern Irish Political Parties, the Irish Government and the UK. This agreement is famously known as ‘Good Friday
Agreement’.

Devolution, to an extent, has remained a constitutional issue. The doctrine of Parliamentary sovereignty has been taken as
bedrock of UK constitution. That is why UK has been termed as a ‘unitary state’ since the final decision rests with UK
Parliament. It is argued by many that the devolution has changed UK from a unitary state to a ‘quasi-federalism’ i.e., it now
resembles some features of a federal state. For example, in Germany, the powers is shared by the central government with
16 states. The primary decisions that affect a normal ‘German’ are made by these states.

Some have also argued that the devolution has come as a challenge to the sovereignty of the Parliament. The key areas like
education, housing etc are now under the ambit of the devolved states. For example, in Scotland, the rules enacted by the
government during Covid-19 era did not apply because area of health has been devolved to the Scottish parliament. It is
said that UK parliament has technically surrendered its power to legislate in devolved areas through ‘Swell Convention’.
Hence, sovereignty is now dispersed throughout UK and no longer rests with UK Parliament. But it may counter argued that
the Sewell Convention is not a threat Westminster Sovereignty; but it is rather a means to promote cordial relationship
between the Westminster Parliament and the devolved legislatures. Having said this, UK Parliament has passed legislation
without devolved legislature’s consent. The notable example is of European Union (Withdrawal) Act 2018. Then the Internal
Market Act (2020) and the Health and Care Bill (2021-2022) were also passed without devolved legislature’s consent. More
so, the reserve and devolved powers are outlined in 1998 Acts. Reserve powers are the matters on which the devolved
states cannot legislate such as foreign policy and international relations, constitutional matters, monetary policy etc. Hence
this shows that the Westminster Parliament is still sovereign and can make or unmake any law.

The Sewell Convention, however, has been made part of the Scotland Act 2016 and Wales Act 2017. But it still remains a
convention and is unlikely to be enforced by the courts. But the Act also says that the incorporation of Sewell Convention
does not affect the power of UK’s parliament to make laws for Scotland. Hence, the power of Westminster remains
unhinged.

The era of Brexit has come with significant challenges with respect to devolved states. The issue arose in the Miller case
when the Scottish and Welsh government challenged the notice given by UK to exit EU treaties. Both the governments
contended that primary legislation is required to give effect to the notification, and Sewell Convention requires consent of
devolved states before a legislation is passed. The Supreme Court agreed that the withdrawal cannot take effect through
royal prerogative and legislation is required to give effect to it. Regarding the Sewell Convention, the court abstained from
intervening in the matter and called it political rather than a legal issue.

The disagreement between the Scottish and Westminster Parliament took a new turn when Scottish Parliament adopted a
‘Continuity Bill’, withholding its consent for EU withdrawal. The UK Parliament, exercising it supremacy, went ahead with
enacting EU Withdrawal Bill. The issue of ‘Continuity Bill’ came before the Supreme Court in the case of The UK Withdrawal
From The European Union (Legal Continuity) (Scotland) 2018. It was held by the Court that certain provisions in the
‘Continuity Bill’ were outside the ambit of Scottish Parliament. Hence, it was firmly reaffirmed by the Supreme Court that
the Sovereignty rests with the Westminster Parliament.

The process of devolution had raised acute reservations amongst English MPs. The question arose as to why Scottish, Welsh
or Irish MPs have a say in laws that only affect England, when English MPs do not have a say over the laws enacted in
devolved legislature. To address this, the procedure of ‘English Votes for English Laws’ was adopted that gave a veto over
the measures that only affected England. The issue arose after the Scottish independence referendum in 2014 when more
powers were devolved to Scottish Parliament. This created a power disparity between the English MPs and Scottish MPs.
And as the devolved states started gaining more powers, the voices started to emerge even more. Hence ‘EVEL’ was an
attempt to address the ‘West Lothian Question’ to strengthen England’s voice, which was necessary just like the devolution
was.

To conclude, the devolution has led to voices for a new constitution. Rodney Brazier has gone on to say “a practical
expression of subsidiarity in the United Kingdom. A new federal constitution would ensure that the devolved systems would
be protected from infringement by the Parliament of the United Kingdom…”. But the consensus on this is not
overwhelming. The devolution is a pragmatic approach in keeping the sovereignty with the Westminster Parliament, and at
the same time it addresses the historical and political differences. It reduces the voice for an independent state such as
2014 referendum on Scottish Independence. This in turn has helped keep UK united. The decentralisation has reduced the
burden on the central government, since many powers and responsibilities have been devolved. Therefore, devolution fits
perfectly in the complex matrix of an un-codified constitution. As Anthony King said: “Devolution, it has frequently been
pointed out, is a process, not an event, and in the case of devolution in the United Kingdom there is every reason to
suppose the process will be never ending.”