Devolution: A Decade on - Justice Committee Contents

1  Introduction


1. Prior to devolution, the United Kingdom was probably the most centralised state in Western Europe, and after devolution England continues to have a high degree of centralisation in its form of government. The constitutional doctrine of the sovereignty of Parliament and the absence of a written constitution has helped to maintain this characteristic, which was vividly illustrated by Parliament's ability to abolish the previous devolved Parliament and Government of Northern Ireland in a matter of days in 1972, in the abolition of the Greater London Council in 1986[1] and in the ability of central government similarly to direct the policies pursued by local authorities.

2. Some have seen a centralised unitary structure as having benefits in a geographically small state, and fear that devolution of power risks breaking up the United Kingdom. Others believe that centralised government is inefficient, unable to respond to Scottish and Welsh senses of national identity or to other differences within the United Kingdom and unable to attract ownership and legitimacy for particular decisions and in the system as a whole. Devolution to Scotland and Wales has changed that system in a way which few now think is reversible; devolution to Northern Ireland and in London is extending the change.

3. This has two very important consequences: first, the way the United Kingdom is governed has changed and will continue to change because its component parts are now governed by different administrations and in ways which are not uniform: secondly, the system of government for England, which remains relatively centralised under the management of the United Kingdom Government and the legislative authority of the United Kingdom Parliament, is at least called into question, and, in the view of a significant proportion of our witnesses, in need of fundamental change. There is no consensus on what change should be made to the system of government for England, but every major political party has put forward or is considering change in this area, with hardly anyone arguing for no change at all.

4. In summary, the system of government of the United Kingdom as a whole has changed irreversibly from that of an undifferentiated unitary state, and will continue to adapt to the changes already made; and the way in which England is currently governed may be unsustainable in this changed system.

Our inquiry

5. It was not the purpose of our inquiry to consider the effectiveness or otherwise of the devolved institutions. Ten years on from the creation of those institutions in Scotland and Wales, we thought it necessary to undertake a review of devolution in order to consider its impact on the United Kingdom and the development of devolution policy since 1999. In this sense, devolution policy is divisible into two strands: a) the over-arching strategic vision for the future of the United Kingdom's constitution and the development of the devolution settlements, and b) the functioning of the existing legislative and administrative framework for the territorial management of the UK.

6. There is some consensus amongst commentators that the key achievement in terms of devolution, from the UK Government's point of view as set out in the 1997 Labour manifesto, has perhaps been accomplished: devolution delivered in Scotland, Wales and now in Northern Ireland. While those settlements continue to evolve, the UK Government appears to have little (if any) strategic vision for the future of the UK as a whole, and such vision is conspicuous by its absence from the Governance of Britain green paper.[2] Debates about common British rights and values seem to be an attempt to "hold the UK together", and most debates start from the premise that the Kingdom should remain united.[3] Indeed this is a point of principle and the starting point for debate for many supporters of devolution. This principle, which has not usually been accompanied by an explicit vision for the future of the United Kingdom's constitution after devolution, has a wide range of consequences and implications for any discussion of the impact of devolution on the United Kingdom. Not least of these is the Government's seemingly ad hoc, and often reactive, approach to the necessary administrative, legislative and structural arrangements for the UK post-devolution.

7. It seems perfectly valid to devolve specific powers and responsibilities to different jurisdictions and leave them to get on with it. This is the purpose of devolution. The risk is that subsequent developments will take unforeseen turns and throw up problems and difficulties from a UK perspective. Any strategic vision must be based on mutual respect of devolved authority, national sensitivities and an understanding of cross border issues,[4] but there is also a need for a forum or process for open and transparent debate and agreement on the direction and means of travel if not on a fixed destination.

8. Given the Government's approach to devolution, we identified outstanding issues that remain to be addressed in order to provide a coherent set of arrangements for the governance of the United Kingdom. In doing so, our inquiry focused on two key questions:

a) what changes (if any) are required to improve the current infrastructure and the procedures and practices of governance in the UK post-devolution. We examined the mechanisms, structures and frameworks that have been put in place at a UK level in order to facilitate the effective and efficient functioning of the asymmetric system of devolution that was introduced to the United Kingdom in 1999, for example, the co-ordination of relationships between administrations and the smooth running of the legislative process.

b) what outstanding constitutional and political issues have arisen after 1999 as a result of devolution, which have an impact or a potential impact on the governance of the UK as a whole. We identified two major issues: the "English Question" (or the England outside London question), described by Rt Hon Sir Malcolm Rifkind MP as "the unfinished business of devolution,"[5] and the issue of public finance and the continued use of the Barnett Formula as the basis for the allocation of public finance in the UK post-devolution, which excites particular interest in some of the English regions as well as in Wales and Scotland. Professor James Mitchell, Head of the Department of Government, University of Strathclyde, told us that while devolution resolved "one problem of legitimacy" in Scotland and Wales, it "has created a series of others, the English Question, the West Lothian Question, the question of Barnett and finance … in a sense we have shifted the problem around within the UK".[6]

9. We took oral evidence over an extended period between November 2007 and July 2008. Apart from those sessions that took place in Westminster, we also travelled to Edinburgh, Cardiff and Newcastle for formal oral evidence sessions. We are grateful to all those who gave oral and written evidence to our inquiry for their contributions.

Asymmetric devolution in the UK

10. The UK has an asymmetric model of devolution, a model which in the words of the Ministry of Justice "catered for specific demands for new democratic institutions in those parts of the UK (Scotland, Wales and Northern Ireland), while maintaining the sovereignty of the UK Parliament in Westminster".[7] The differing settlements not only reflect the differences in the historical and institutional background of Scotland, Wales and Northern Ireland, but have also had a key impact in the way in which devolution and devolved politics had developed in each of those places.[8]

11. On 11 September 1997, 74.3% of voters in Scotland voted in a referendum in favour of the Government's proposals for a Scottish Parliament.[9] A week later, the people of Wales also endorsed Government proposals for the creation of a National Assembly for Wales, but by a majority of only 6,721 votes. In part, these different results reflected historical and institutional differences in the two countries prior to 1997, for example:

  • Since the Act of Union in 1707, Scotland retained a separate legal, educational and institutional identity.
  • In 1979, the majority of Scots who voted in the devolution referendum had voted in favour (it was not put into effect because of the 40% threshold, which essentially meant that not voting counted as a no vote). In the Welsh devolution referendum of 1979, devolution was rejected by a majority of 4-1 against the Government's proposals.
  • During the 1980s the momentum for devolution grew in Scotland, and a Constitutional Convention involving political parties, religious leaders and the organizations of civil society was established. There had been no comparable process or Constitutional Convention in Wales.[10]

Thus, while the then leader of the Labour party, John Smith, described devolution as the "settled will" of the Scottish people,[11] this was not the case in Wales.

12. The Scotland Act 1998 established a Scottish Parliament with primary legislative powers over all aspects of Scottish life and society other than those reserved for the UK Parliament: primarily defence and foreign policy, the pension and benefit systems and economic policy. The Act gave the Scottish Parliament the right to vary income tax by up to three pence in the pound although, to date, no Scottish Government has sought to make use of this right.

13. The Wales Act 1998 created a sixty-member corporate body (National Assembly for Wales) with secondary law-making powers in areas of Welsh life and society specifically prescribed in the Act and in the Transfer of Functions Order. The shortcomings of the initial arrangements in which the Assembly, including the Administration, constituted as a single body corporate, were widely acknowledged, most notably in the Richard Commission Report published in 2004.[12] In 2006, a second measure was passed, the Government of Wales Act 2006, which reformed the corporate body and established the more executive style of devolution i.e. a Cabinet (now described as the Welsh Assembly Government) and an Assembly in statute. The Act increased the law-making powers of the National Assembly for Wales by giving the Assembly framework powers and the right to pass Assembly measures. The Act also made provision for the possibility of a future referendum on full law-making powers (subject to the approval of both Houses of Parliament).[13]

14. To date, no major Party has proposed an English Parliament equivalent to the devolved institutions in the other UK nations. However, there were some expectations reflected in some political party manifestos that devolution to Wales would be closely followed by devolution to the English regions.[14] The Government's plans for England in 1997 created the opportunity for each region of England to vote in a referendum for the creation of an elected regional assembly for that region. This led to the first and only referendum on regional devolution in the North East in 2004 when the proposition was rejected decisively. The only devolved institution introduced in England has been the Greater London Authority (GLA).[15] On 8 May 1998 a referendum was held on proposals for a form of devolved government in London. 72% of those who voted in the referendum voted in favour of the creation of the Greater London Authority, with a Mayor for London and a 25 member Assembly.[16] This is significant because London's population at 7.45 million people is well in excess of the population of Scotland (5.2 million) and Wales (2.98 million).[17]


15. The Greater London Authority (GLA) is a unique form of strategic citywide government for London. It is made up of a directly elected Mayor (who has an executive role) and a separately elected Assembly (which has a scrutiny role). The Mayor leads the preparation of statutory strategies on: transport, spatial development, economic development and the environment. Furthermore, the Mayor sets the budgets for: the Greater London Authority, Transport for London, the London Development Agency, the Metropolitan Police and London's fire services. The total budget amounted to £4.7 billion in 2002/03. This had increased to over £10 billion by 2007/08.

16. The Assembly scrutinises the Mayor's activities, questioning the Mayor about his decisions. Based on a two-thirds majority of Assembly Members they are also able to amend the Mayor's budgets. The Assembly is also able to investigate other issues, including transport, policing, fire and emergency planning, economic development, planning, culture, the environment and health. It publishes its findings and recommendations, and makes proposals to the Mayor.[18]

17. On 23 October 2007 the Greater London Authority (GLA) Act received Royal Assent and came into law.[19] The Act gave the Mayor and the London Assembly considerable additional powers, in particular, it gave the Mayor new lead roles in housing and tackling climate change, strengthened powers over planning and waste, and enhanced powers in health and culture. Martin Burch, Alan Harding and James Rees (Constitution Unit, UCL)concluded that:

"Overall the Act greatly strengthens the power of the Mayor and significantly extends the leading role in elected 'regional' governance that London institutions, alone among the English regions, have been granted since 2000. It strengthens the ability of the London region to order its own affairs and to lobby more effectively in key national policy making processes. If lobbying and influence are matters of proximity, which to some extent they are, then London is doubly favoured since the key policy networks are located in the metropolis. Some argue that the GLA is no more than a glorified local council. Yet clearly it is far more than that. It covers a large population, the Mayor controls a budget of £10.6bn (up from £3.8bn in 2001/2002) and the mayoralty is the biggest and most important directly elected sub-national office in the UK."[20]


18. While devolution to Northern Ireland is part of the asymmetric devolution arrangement for the United Kingdom, the process of devolution in Northern Ireland is inextricably bound up with the peace process, and problems with this have led to the Assembly and Executive being suspended four times, most recently in October 2002.[21] The Northern Ireland Assembly was re-convened in 2007.

19. When functioning, the Northern Ireland Assembly can pass primary and delegated legislation in those areas which are transferred. The UK Parliament legislates in "excepted" and "reserved" areas. "Excepted" subjects will remain with the UK Parliament unless the Northern Ireland Act 1998 is amended. "Reserved" subjects could be transferred by Order at a later date if there is cross-community consent. This triple division of areas is unique to Northern Ireland devolution.[22] While there are lessons that can be learnt from the experience of devolution in Northern Ireland when considering the broader impact of devolution on the UK, the specific circumstances in Northern Ireland add a level of complexity to this analysis. For this reason, while many of our conclusions extend to Northern Ireland, for example, relating to the Joint Ministerial Committee and public finance, we did not consider the specific arrangements for devolution in Northern Ireland during our inquiry.

The changing context

20. While constitutionally devolution in Scotland and Wales could be reversed by the UK Parliament, it is now accepted by all of the major political parties and by the majority of the public across the United Kingdom. Devolution therefore represents a permanent change to the way the UK is governed. However, devolution is a dynamic process, and ten years on, the institutional and political context within the devolved territories and throughout the UK has changed. Most notably, since the elections to the Scottish Parliament and National Assembly for Wales held in May 2007, there are Governments of different political compositions in London, Edinburgh and Cardiff. (An SNP minority administration was formed in Scotland following the May 2007 elections, while in Wales the Labour Party formed an Executive in coalition with Plaid Cymru).

21. Furthermore, at the time of writing, reviews were being undertaken in both Scotland and Wales to consider the possible devolution of further powers to the Scottish Parliament and to the National Assembly for Wales respectively. Professor Robert Hazell, Director, Constitution Unit, University College London, has argued that the establishment of a SNP government in Edinburgh has opened the question of amendments to the Scottish devolution settlement.[23] The Scottish Government sees that the further development of the constitutional settlement, whether to move to independence or to further devolution to the Scottish Parliament, as an issue that needed to be addressed.[24]

22. Following a debate in the Scottish Parliament on 6 December 2007, Wendy Alexander MSP, the then leader of the Labour party in Scotland, launched the Commission on Scottish Devolution. The United Kingdom Government signalled its support for the Commission on 25 March 2008 when it was formally announced by the then Secretary of State for Scotland, Rt Hon Des Browne MP.[25] The primary aims of the Commission are:

  • To ensure that any proposals for constitutional developments that affect Scotland are fully debated and decided in Scotland;
  • To examine how the proposals of the Power Inquiry[26] for more participative governance could be implemented in Scotland;
  • To clarify the constitutional implications of various forms of relationship with the other countries of the UK; and,
  • To prepare the broad outline of a draft Constitution for Scotland.[27]

23. On 17 February 2008 the Prime Minister, Rt Hon Gordon Brown MP, said there was a "very strong case" for a review after ten years of devolution and that one of the questions to be addressed would be the Scottish Parliament's use of tax raising powers. However, he also said that the review was not a "one way street" and some powers could be returned to Westminster.[28] Sir Kenneth Calman was appointed to chair the Commission on Scottish Devolution on 25 March 2008.[29]

24. The SNP did not sign up to the Commission, as they had already published a consultation Choosing Scotland's Future: A National Conversation: Independence and Responsibility in the Modern World on 14 August 2007.[30] In that paper, it outlined what they described as three "realistic choices" for Scotland's future. These are described as:

"First, retention of the devolution scheme defined by the Scotland Act 1998, with the possibility of further evolution in powers, extending these individually as occasion arises. Second, redesigning devolution by adopting a specific range of extensions to the current powers of the Scottish Parliament and Scottish Government, possibly involving fiscal autonomy, but short of progress to full independence. Third, which the Scottish Government favours, extending the powers of the Scottish Parliament and Scottish Government to the point of independence".[31]

25. The Scottish Government argued that the structure of the Scotland Act 1998, and the history of the development of the settlement by the devolved Scottish administration and the United Kingdom Government since devolution, "clearly shows that the boundaries of current devolved responsibilities are matters which the Scottish Government and Parliament can and should consider".[32] Furthermore, it suggested that "Scottish independence and, to some extent perhaps, full fiscal autonomy could, in practice, address many of the concerns that have been expressed" in relation to the English question and the governance of England.[33]

26. In Wales, devolution has been regarded by many as "a process, not an event".[34] Indeed, as outlined above, less than 9 years after the Government of Wales Act 1998, a second measure was passed: the Government of Wales Act 2006. This brought about a process by which law-making powers can be transferred without primary legislation.[35] The current Labour / Plaid Cymru Government in Cardiff is committed to conducting a referendum on full law-making powers by 2011. They said:

"There will be a joint commitment to use the Government of Wales Act 2006 provisions to the full under Part III and to proceed to a successful outcome of a referendum for full law-making powers under Part IV as soon as practicable, at or before the end of the Assembly term".[36]

27. An All-Wales Convention was launched by the Welsh Assembly Government on 6 May 2008. An interim report was published on 24 March 2009,[37] with a final report on the likelihood of getting full law-making powers for the National Assembly for Wales expected to be completed by the end of 2009.[38]

1   Metropolitan counties were also abolished at this time. Back

2   Ministry of Justice, Governance of Britain, Cm 7170, July 2007 Back

3   Professor Vernon Bogdanor, In Search of British Values, Prospect Magazine, Issue 139, October 2007. See also Robert Hazell, Towards a New Constitutional Settlement: An Agenda for Gordon Brown's First 100 Days and Beyond, June 2007, p.10 Back

4   The nature and sensitivity of such issues have, for example, been illustrated by the work of the Welsh Affairs Select Committee on the provision of cross-border services for Wales. To date the Committee has reported on The Provision of cross-border health services for Wales (Sixth Report, Session 2007-08, HC 870, and Fifth Report, Session 2008-09, HC 56) and Cross-border provision of public services for Wales: Further and higher education (First Report, Session 2008-09, HC 57). The Committee is also currently conducting an inquiry into Cross-border provision of public services for Wales: Transport. Back

5   Rt Hon Sir Malcolm Rifkind MP, Speech to the Centre for Policy Studies in London on 23 April 2008, The Unfinished Business of Devolution: answering the West Lothian Question, Back

6   Q 261 Back

7   Ev 223 Back

8   See Annex A for a more detailed chronology of the key developments in the history of devolution between 1997 and 2008.  Back

9   An Introduction to devolution in the UK, Research Paper 03/84, House of Commons Library, November 2003 Back

10   For more information see: Paterson, Lindsay and Wyn Jones, Richard (1999), 'Does Civil Society Drive Constitutional Change?' in Taylor, Bridget and Thomson, Katarina (eds.), Scotland and Wales: Nations Again, (Cardiff: University of Wales Press), pp. 169-198 Back

11   See Back

12   An Introduction to devolution in the UK, Research Paper 03/84, House of Commons Library, November 2003 Back

13   Government of Wales Act 2006 Back

14   Available at and Back

15   Economic and Social Research Council, Devolution and Constitutional Change Programme: Final Report, March 2006, Back

16   Turnout was 34%, Back

17, Back

18   Greater London Authority Act 1999 and Explanatory Notes  Back

19   Office of Public Sector Information, Greater London Authority Act 2007, Back

20   The Constitution Unit, Devolution Monitoring Report for the English Regions, January 2008 Back

21 Back

22   An Introduction to devolution in the UK, Research Paper 03/84, House of Commons Library, November 2003, p 3  Back

23   Robert Haxell, Towards a New Constitutional Settlement: An Agenda for Gordon Brown's First 100 Days and Beyond, (Constitution Unit, UCL), June 2007, page 26 Back

24   Ev 232 Back

25   HC Deb, 25 March 2008, cc 7-8 WS  Back

26   The Power Inquiry was set up in 2004 to explore how political participation and involvement can be increased and deepened in Britain. For more information see Back

27 Back

28 Back

29 Back

30 Back

31 Back

32   Ev 235 Back

33   Ev 232 Back

34   Ron Davies, Devolution: A Process Not an Event, The Gregynog Papers, 2 (2), Cardiff: Institute of Welsh Affairs, (1990) pp.9-12 Back

35   For more information on changing the Assembly's legislative competence by 'framework' provisions in Parliamentary Bills see Back

36   One Wales-A progressive agenda for the government of Wales: An agreement between the Labour and Plaid Cymru Groups in the National Assembly 27th June 2007 Back

37 Back

38 Back

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