Ivan: 0:00

Hello and welcome to this Bench Report series on the UK Constitution. Our third discussion looks at the devolved governments of the UK.

Amy: 0:10

That's right. We'll be covering the Scottish Government, the Welsh Government, and the Northern Ireland Executive.

Ivan: 0:16

And we should probably also mention the UK government's own related departments, the Scotland Office, Wales Office, and Northern Ireland Office.

Amy: 0:24

Absolutely. They're part of the picture, too. The core idea is how power is shared or devolved from the UK Parliament.

Ivan: 0:32

So these devolved governments, they didn't just spring up. They were created.

Amy: 0:36

Precisely. They exist because the UK Parliament, the king in Parliament, passed specific laws, primary legislation to establish them. It's Parliament sharing some of its power.

Ivan: 0:46

Okay. So what are the key pieces of legislation we're talking about?

Amy: 0:49

Well, for Northern Ireland, the foundation is the Northern Ireland Act 1998. Okay. For Wales, it's primarily the Government of Wales Act 2006, though that's been amended over time. And Scotland, that's the Scotland Act 1998, also amended since then. These are the devolution statutes.

Ivan: 1:05

The devolution statutes. Now, are these acts somehow special in law? Do they rank higher than other acts of parliament?

Amy: 1:13

That's a really important point. No, they don't have a superior legal status. They are hugely significant politically and conceptually. Constitutionally, of course, but legally, they're acts of parliament like any others.

Ivan: 1:25

So the devolved bodies, the Scottish Parliament, the Senate in Wales, the Northern Ireland Assembly, they can only do what these acts allow them to do.

Amy: 1:33

Exactly. They operate strictly within the powers granted by that UK legislation.

Ivan: 1:37

Which raises a big question. Could the UK Parliament just abolish them? Undue devolution.

Amy: 1:45

Legally speaking, Parliament is sovereign, so yes. But politically, it's extremely difficult.

Ivan: 1:50

How so?

Amy: 1:51

Well, for Scotland, the Scotland Act now says the Parliament and government are permanent unless the people of Scotland vote to abolish them in the referendum.

Ivan: 2:00

Ah, so there's a referendum lock. What about Wales?

Amy: 2:02

Similar provisions are in place for the Senate and the Welsh government. Permanence is recognized, requiring that referendum.

Ivan: 2:08

And Northern Ireland. I imagine that's different again because of the Good Friday Agreement.

Amy: 2:12

Very different. The Assembly and Executive are key parts of an international treaty, the Belfast Good Friday Agreement. Abolishing them would mean changing that treaty, which is a major international and political undertaking.

Ivan: 2:24

So while technically possible for Parliament to abolish them, the hurdles are immense, especially for Northern Ireland.

Amy: 2:31

Immense. And generally, all these devolved institutions are now officially described as a permanent part of the United Kingdom's constitutional arrangements. The intent is clear.

Ivan: 2:41

Okay, let's shift to what they actually do. We hear about out reserved powers and devolved or transferred powers. Can you break that down?

Amy: 2:48

Sure. It's essentially a division of labor. Reserved matters are the big policy areas the UK Parliament keeps control over for the whole UK. Things like defense, foreign policy, the Constitution itself, macroeconomics.

Ivan: 3:01

And devolved or transferred matters.

Amy: 3:03

Those are the areas where the devolved legislatures, the Scottish Parliament, the Senate, the NI Assembly have the power to make their own laws. Think health, education, local government, environment, agriculture, in many respects.

Ivan: 3:17

How is it decided which is which? Is it clearly listed somewhere?

Amy: 3:21

Yes. For Scotland and Wales, the respective acts, the Scotland Act and Government of Wales Act, contain detailed schedules listing the reserved matters. Anything not listed is presumed to be devolved.

Ivan: 3:33

So it's a reserve powers model for them. What about Northern Ireland?

Amy: 3:36

Northern Ireland's slightly different. It has accepted matters, which are like reserved matters and won't be devolved, similar to defense or foreign affairs. Then it has reserve matters, which are currently handled by Westminster, but could potentially be transferred to the assembly later with agreement. Things like policing and justice were transferred this way. Everything else is considered transferred.

Ivan: 3:59

Got it. But can the UK parliament still make laws even in the devolved areas if it wants to?

Amy: 4:06

Yes. Constitutionally, the UK parliament retains the power to legislate on any matter devolved or reserved for any part of the UK.

Ivan: 4:14

But does it? That seems like it could cause friction.

Amy: 4:17

It could. And that's where the Sewell Convention comes in. It's a very important political understanding.

Ivan: 4:21

The Sewell Convention. What does that say?

Amy: 4:23

It states that the UK Parliament does not normally legislate on a devolved matter without the consent of the relevant devolved legislature.

Ivan: 4:33

How is that consent given?

Amy: 4:34

Through something called a Legislative Consent Motion, or LCM, the devolved parliament or assembly basically votes to say, yes, we agree to the UK parliament making this law in our area.

Ivan: 4:46

You emphasize normally. Is the Sewell Convention legally binding? If Parliament ignores it, can someone go to court?

Amy: 4:54

No, it's not legally binding. The Supreme Court has confirmed this. It's a convention, a political rule. It is now recognized in the devolution statutes themselves, but that recognition explicitly states it doesn't create legal obligations. So Parliament can legislate without consent, though it risks political fallout.

Ivan: 5:10

Okay, so the devolved legislatures make their own laws in transferred areas. Do they all have the same lawmaking process?

Amy: 5:17

No, they each have their own procedures, their own standing orders.

Ivan: 5:20

Can you give an example?

Amy: 5:21

Well, the Northern Ireland Assembly, for instance, has quite a formal six stage process for its bills from introduction through committee scrutiny, debates and final approval.

Ivan: 5:30

Six stages and Scotland.

Amy: 5:33

The Scottish Parliament is known for its powerful committee system. Committees don't just scrutinize bills. They can initiate legislation themselves and have strong powers to call for evidence.

Ivan: 5:43

Interesting. And Wales. The Senate.

Amy: 5:46

The Senate. Simru has seen its legislative powers grow significantly over the years. Initially, it had more limited powers, but now it can pass laws called acts of sin on devolved subjects. Once a bill is passed by the Senate, it's the presiding officer, their equivalent of the speaker who submits it for royal assent.

Ivan: 6:04

And once these laws, acts of the Scottish Parliament, acts of Senate, acts of the Northern Ireland Assembly are made, can they be challenged?

Amy: 6:11

Yes, definitely. If there's a question about whether the law deals with a reserved or accepted matter, basically, if the devolved legislature has overstepped its powers, it can be challenged in court.

Ivan: 6:21

Who hears those challenges?

Amy: 6:23

Ultimately, the UK Supreme Court. These are referred to as devolution issues. Laws can also be challenged if they're deemed incompatible with the Human Rights Act 1998, just like UK Parliament Acts.

Ivan: 6:36

Let's talk about the leadership. Each devolved government has a first minister, correct?

Amy: 6:41

Yes, that's the title for the head of government in Scotland and Wales. In Northern Ireland, it's slightly different. There's a first minister and a deputy first minister.

Ivan: 6:49

And they work together?

Amy: 6:50

Yes. Crucially, in Northern Ireland, the first minister and deputy first minister are appointed together and hold office jointly. One cannot be in position without the other. They effectively share the leadership role.

Ivan: 7:03

Tell me more about the executive structure there, the Northern Ireland executive.

Amy: 7:06

It's formally called the executive executive committee. The first minister and deputy first minister jointly determine the number of ministerial offices. Then those ministerial posts are allocated to political parties based on their strength in the assembly using a mathematical formula called DANT. It's a system of mandatory coalition or compulsory power sharing designed to ensure cross-community representation in government.

Ivan: 7:32

Mandatory coalition. That's quite distinct. What about Wales? How was the Welsh government formed?

Amy: 7:38

In Wales, the first minister is nominated by the Senate and appointed by the king. The first minister then appoints the other Welsh ministers, but requires the king's approval for those appointments.

Ivan: 7:50

Are they ministers of the crown, like UK government ministers?

Amy: 7:54

No. Interestingly, they are collectively known as the Welsh ministers, but they aren't ministers of the crown. It's a distinct legal status.

Ivan: 8:03

And Scotland. The Scottish government.

Amy: 8:06

The Scottish government, which used to be called the Scottish Executive, the name changed in 2007, is led by the First Minister, nominated by the Scottish Parliament, and appointed by the King. The First Minister then appoints the other Scottish ministers.

Ivan: 8:20

And their accountability.

Amy: 8:21

Scottish ministers are accountable to the Scottish Parliament. There's a strong expectation, similar to the UK system, that they should resign if they knowingly mislead Parliament.

Ivan: 8:31

What about the King's role? You mentioned appointments. Does the King have much direct involvement.

Amy: 8:35

In Northern Ireland, the King's role in appointing ministers is quite limited given the power sharing mechanism. However, the King's prerogative powers and other executive functions related to transferred matters are generally exercised by the relevant Northern Ireland ministers or in some key cross-cutting areas jointly by the First Minister and Deputy First Minister.

Ivan: 8:58

OK, that covers the structures. What about the funding? How do these governments pay for everything?

Amy: 9:03

The bulk of their funding comes directly from the UK government in the form of a block grant,

Ivan: 9:08

a block grant. How is the size of that grant decided?

Amy: 9:11

It's largely determined using a mechanism called the Barnett formula. This isn't set down in law. It's a non statutory arrangement managed by the Treasury. It adjusts the devolved budgets based on changes in comparable spending in England.

Ivan: 9:26

So they get this big pot of money.

Amy: 9:27

Exactly. And then they have significant autonomy, considerable freedom to decide how to spend that block grant across their areas of responsibility. like health, education, et cetera, they set their own priorities.

Ivan: 9:39

Are there ever disputes about the money?

Amy: 9:41

Yes. Financial matters can be complex. There are mechanisms for discussion and potential dispute resolution, such as joint exchequer committees involving the Treasury and devolved finance ministers.

Ivan: 9:52

It sounds like there needs to be a lot of ongoing communication between the different levels of government.

Amy: 9:56

Absolutely. That's managed through what's called intergovernmental relations, or IGR.

Ivan: 10:01

Is there a legal framework for IGR?

Amy: 10:04

No. Interestingly, IGR operates primarily on the basis of agreement and consensus. There isn't a statutory basis underpinning it.

Ivan: 10:12

So how is it structured now? Has it changed recently?

Amy: 10:15

Yes. There was a major review concluded in 2022 to set up a new structure. At the top, there's the council, officially the prime minister and heads of devolved governments council.

Ivan: 10:26

So the PM and the first minister is meeting together.

Amy: 10:28

Precisely. There are also other ministerial forums for specific policy areas and a newer body What else supports these relationships?

Ivan: 10:40

There's

Amy: 10:41

an overarching memorandum of understanding, sort of a main agreement on principles. And below that, there can be more detailed bilateral agreements called concordats, which set out how specific departments will cooperate on particular issues.

Ivan: 10:56

Who in the UK government oversees all this coordination?

Amy: 10:59

The designated UK government minister responsible for intergovernmental relations and managing devolution outside England is usually the Chancellor of Duchy of Lancaster.

Ivan: 11:09

We mentioned the UK secretaries of state for Scotland, Wales and Northern Ireland earlier. What exactly do they do in this devolved picture?

Amy: 11:17

They play a really important role. They act as the primary link between the UK government and the devolved administrations in their respective nations. They represent UK government interests there and represent the interests of those nations within the UK. Do

Ivan: 11:29

they have specific legal powers related to devolution?

Amy: 11:33

Yes, they hold various statutory powers under the Devolution Acts. For example, the Secretary of State for Northern Ireland has roles in consenting to the transfer of certain powers to the Assembly, and crucially is the one who submits Assembly legislation for royal assent after checking its within competence. Similar roles exist, though nuanced, for the Secretaries of State for Scotland and Wales regarding reserved matters and the operation of the Acts.

Ivan: 11:59

Does the UK Parliament keep an eye on how devolution is working?

Amy: 12:03

It does. Each nation has a dedicated select committee in the House of Commons, the Northern Ireland Affairs Committee, the Scottish Affairs Committee, the Welsh Affairs Committee. Their job includes scrutinizing the work of the respective territorial offices and the secretaries of state.

Ivan: 12:19

Can MPs in Westminster ask questions about, say, schools in Scotland or hospitals in Wales?

Amy: 12:25

Generally, no. There's a procedural convention, sometimes called a self-denying ordinance, where the UK Parliament tries not to tread on the toes of the devolved legislatures by tabling questions or holding debates solely on matters that are fully devolved.

Ivan: 12:39

But are there exceptions?

Amy: 12:40

Yes, there are exceptions, particularly if a matter has UK-wide implications or involves intergovernmental relations. And fundamentally, It's crucial to always remember that despite devolution, the UK Parliament remains legally sovereign. It retains the ultimate authority to legislate on any issue for any part of the UK, whether it's technically devolved or not. That power hasn't gone away, even if using it against the convention would be politically contentious.

Ivan: 13:07

That provides a really clear picture of how these devolved systems operate within the UK framework. Complex, but fascinating.

Amy: 13:14

It certainly is. A constantly evolving part of the UK's constitutional setup.

Ivan: 13:19

Thanks for listening. Next, we look at the separate judicial systems across the UK.