Word of the Week: Devolution

The affirmative outcomes of the Scottish and Welsh devolution referenda in September 1997, as well as the Northern Irish referendum on the Belfast Agreement in May 1998, gave democratic legitimacy to a new programme of devolution. But how much of an impact has devolution had on the extent to which the Westminster parliament is sovereign? (This builds on my post on sovereignty.) I argue that, whilst legal sovereignty (the main subject of my previous post) rests in the UK Parliament at Westminster, political sovereignty is divided amongst the assemblies and parliaments of the United Kingdom. The impact of devolution on the principle and practice of ‘parliamentary sovereignty’ has, therefore, been significant, albeit limited in extent. To elucidate my next discussion of the politico-legal roles of the devolved legislatures, let's begin with an overview of how sovereignty works in the UK.

As A.V. Dicey affirmed in 1889, ‘The sovereignty of Parliament is, from a legal point of view, the dominant characteristic of our political institutions.’ This was preceded by Thomas Hobbes’s view of the sovereign as a ‘Mortal God’ with unified, indivisible authority. Hobbes and Dicey reflect the traditional concept of the sovereign as the foundation of legal authority from which all legitimate political power flows. Parliamentary sovereignty, as it is traditionally conceived, constitutes this supreme and indivisible foundation. Legally, this view seems reasonable, since statute law is formed by Parliament, and not by any other body. So Parliament might have legal sovereignty, or sovereignty over the formation of legislation. Politically, however, there are limitations on parliamentary sovereignty. Thus Parliament might not have unfettered political sovereignty, or sovereignty over decisions which have significant social, economic or political impacts. The European Union, for instance, upholds the supremacy of EU law: in the ‘Factortame vs. Secretary of State for Transport’ case, the House of Lords ruled that courts could ‘disapply’ statute law in favour of EU law. However, since the EU has legal competence simply due to the UK ratifying EU law in the European Communities Act of 1972, Parliament to some extent is still sovereign: after Parliament voted by 498 votes to 114 in favour of the European Union (Notification of Withdrawal) Bill, it is clear that Parliament has, all along, retained its ability to withdraw from the EU and thus reject EU law. So Parliament appears to have legal sovereignty, even though it does not have sufficient political sovereignty to initiate legislation or challenge EU law while it upholds the European Communities Act.

Nevertheless, perhaps executive dominance of the legislature has limited parliamentary sovereignty. The Conservative majorities of +144 and +101 in 1983 and 1987 gave Margaret Thatcher’s Government excessive control over the legislature, effectively controlling Parliament. Tony Blair’s majorities of +179 from 1997 and +167 from 2001 give further weight to this idea. However, as the Government must be, at least in large part, drawn from the legislature (in that most cabinet members and ministers tend to be Members of the House of Commons) it seems that the executive cannot bypass parliamentary sovereignty. Parliament, in the context of EU law and executive power, appears to retain its legal sovereignty.

Having elucidated the concept of parliamentary sovereignty, let's now progress to look at whether devolution has affected the sovereignty of the Westminster Parliament. The creation of the ‘Stormont’ Northern Irish Assembly may lend some justification to the view that parliamentary sovereignty has been eroded. The Westminster Government acknowledges the rights of Stormont to create legislation in certain policy areas, such as agriculture, the environment, health, enterprise, investment, social services, justice and policy. So Stormont is capable of forming legislation that, before its formation, would have been Westminster’s responsibility. For instance, the new Road Traffic (Amendment) Act is set to make Northern Irish drink-driving law harsher than the rest of the UK, lowering drink-driving limits by 40%. At the ‘Holyrood’ Scottish Parliament, moreover, a ban on hunting with dogs was introduced in 2001, 4 years ahead of England and Wales. What is more: Holyrood, in time for the June 2016 Scottish Parliament elections, passed the Scottish Elections (Reduction of Voting Age) Act, making Scotland the first nation of the UK to allow 16- and 17-year-olds to vote in elections. Also, Holyrood has powers over economic development, some tax-raising powers, social security, justice, education, agriculture, forestry, fishing, inter alia (amongst other things). Furthermore, following the Government of Wales Act (2006), the ‘Senned’ Welsh Assembly can legislate on policy areas such as agriculture, education, fishing, housing, fire and rescue service, transport, and economic development. Since devolved administrations can exercise these legislative powers in certain policy areas, often to the partial exclusion of Westminster, it is arguable that parliamentary sovereignty is being eroded, since Westminster politicians cannot vote on matters dealt with by the devolved administrations exclusively.

However, although Westminster generally does not involve itself in the affairs of devolved administrations, it nevertheless retains the legal right to make statutes which overturn the measures of Stormont, Holyrood or Senned. Statute law, or law that's initiated by HM Government and ratified by Westminster, takes legal precedence over the legislation of the devolved administrations. Westminster’s primary legislation, in other words, is still primary, and thus the Westminster Parliament still has legal sovereignty. Nevertheless, this does not detract from the fact that political sovereignty is divided up among the four nations of the UK, such that the devolution of powers to Stormont, Holyrood and Senned has had a lasting political impact on the sovereignty of the Westminster Parliament. In section 3.1 of the White Paper on ‘The United Kingdom’s exit from and new partnership with the European Union’, the UK Government contends that the devolved administrations are engaged in the preparation for the delivery of ‘Brexit’. So the Westminster Parliament has forfeited some of its political sovereignty to the devolved legislatures, since it requires at least minimal acquiescence from the devolved legislatures in areas such as fundamental constitutional reform. Although MP David Davis chairs the Joint Ministerial Committee for European Negotiations, or JMC(EN), this is also attended by ministers from each of the devolved administrations. Moreover, the UK Government argued in section 3.5 of the Brexit White Paper that, after the UK’s exit from the EU, the devolved assemblies will see their share of political sovereignty enhanced: the Government will ‘use the opportunity of bringing decision making back to the UK to ensure that more decisions are devolved.’

Nevertheless, the Stormont administration has not yet published its own White Paper on Brexit, partly due to the fact that the power sharing agreement collapsed following Sinn Féin’s outrage at the failure of the Renewable Heat Incentive, which is set to cost up to half a billion pounds. Thus the stability at Westminster enables it to dominate the UK both legally and politically, thus enhancing the notion that Parliament is sovereign. Moreover, although the primary objective of both Senned’s and Holyrood’s White Papers was continuing participation in the Single Market, this is unlikely to be accepted by Whitehall in negotiations or Westminster in its votes on these negotiations: PM Theresa May, in her speech on 17 January 2017 entitled ‘A Global Britain’, said that the disadvantages of free movement of people made membership of the Single Market disadvantageous for the UK. Therefore, perhaps Westminster retains both legal sovereignty and, in large part, political sovereignty. However, it must equally be acknowledged that, although political sovereignty is distributed most densely at Westminster, the May 2015 General Election gave the Holyrood administration a partial say on statute law created by Westminster. Through the election of 56 Scottish National Party MPs to the Westminster Parliament, as well as the SNP’s winning a plurality of seats after the June 2016 Holyrood elections, Holyrood and SNP leader Nicola Sturgeon now has the ability to influence Westminster parliamentary scrutiny. Therefore, although Holyrood is subservient to Westminster, in reality the Holyrood Government can, through performing well in Westminster elections, also have political influence over Westminster.

Overall, it seems that legal sovereignty still rests in the Westminster Parliament, as section 2.1 of the Government’s EU White Paper acknowledges. Political sovereignty, however, is somewhat divided amongst Westminster, Senned, Holyrood and Stormont. But this is not to say that political sovereignty is equally divided amongst the four legislatures of the UK. Political sovereignty, for the most part, rests at Westminster. Therefore the impact on the sovereignty of the Westminster Parliament of the granting of legislatures to Wales, Scotland and Northern Ireland has been smaller than, say, the impact of EU membership on parliamentary sovereignty. But this is not to say that the impact of devolution, however small, is not significant. Rather, the significance of the (unequal) division of political sovereignty amongst different legislatures continues to require the consent, or at least minimal acquiescence, of devolved legislatures in certain policy areas, including devolved areas such as education as well as major constitutional reform. So the impact on the sovereignty of the Westminster Parliament of devolution since 1999 has been relatively small but nonetheless significant.