Aileen McHarg explains why devolved boundaries have become more contested – both politically and legally, and makes suggestions about how settlements could be improved.
In April 2023, the Scottish Government confirmed its intention to seek judicial review of the UK Government’s unprecedented decision to block the enactment of Holyrood’s Gender Recognition Reform (Scotland) Bill. This is the latest in a growing number of disputes over devolved lawmaking powers to have ended up in the courts.
In a paper commissioned for the Institute for Government and Bennett Institute for Public Policy’s joint Review of the UK Constitution, I explore the reasons why devolved boundaries have become more contested – both politically and legally – in recent years, and make suggestions about how matters could be improved. I argue that the ways in which the boundaries of devolved competence have been redrawn (largely, though not exclusively, due to Brexit), and the ways in which boundary disputes are being resolved, raise significant constitutional concerns. The net effect of these developments has been to threaten the devolved legislatures’ ability to make autonomous and effective policy choices within their sphere of competence, thus undermining the central constitutional purposes of devolution. A range of other constitutional values relevant to devolved law making have also been undermined, particularly process values such as transparency and accountability, intelligibility and legal certainty.
Why have devolved boundaries become more contested?
Although Brexit is not the only explanation for increasing boundary disputes, it has had a profound impact both on the nature of the limits on devolved lawmaking and on UK-devolved relations. Brexit saw the creation of new governance frameworks for internal and external trade, key parts of which were imposed on the devolved institutions without their consent. Not only are these technically more complex and less transparent than the obligation to comply with EU (European Union) law which they replace, but they blur the boundaries between UK (United Kingdom) and devolved decision-making in ways that EU law did not. Unlike EU law, they also have an asymmetric effect on UK and devolved decision-making. The UK Government has acquired a new supervisory role in relation to devolved decision-making – seen for example in relation to disputes over granting exemptions from the UK Internal Market Act 2020 for Scottish and Welsh bans on single use plastic products, and the Scottish Government’s Deposit Return Scheme for bottles. Meanwhile, as in relation to the legalisation of gene-edited crops, the UK Government when legislating for England is effectively able to impose its policy choices throughout Great Britain, despite objections from the Scottish and Welsh Governments.
The boundaries between the UK and devolved decision-making have been further blurred by the new willingness of the Westminster Parliament to exercise its residual right to legislate in relation to devolved matters, disregarding the obligation under the Sewel Convention to do so only with devolved consent. In addition, UK ministers are increasingly being empowered to act in devolved policy areas, again often with no requirement to gain the consent of devolved ministers. These developments have had significant adverse effects on devolved autonomy, as well as on the predictability, coherence and accountability of decision-making in devolved policy areas.
Not surprisingly, all this has had a deleterious effect on relations between the UK and devolved governments; practices of consultation and cooperation over the development of UK and devolved legislation designed to anticipate and avoid boundary disputes no longer appear to be working as well as they used to. Instead, intergovernmental litigation has become more common, with resort to the courts often being used in a tactical manner to reinforce political strengths, compensate for political weaknesses, or to break political logjams.
However, the way the courts have approached recent devolution disputes is itself problematic. Reflecting a Brexit-related “conservative turn” in constitutional adjudication more generally, devolution disputes have been viewed almost exclusively through the lens of parliamentary sovereignty, thereby failing to do justice to the full range of constitutional considerations at stake. One particularly problematic example is the way in which the Supreme Court has fashioned what were previously considered to be purely symbolic – and technically redundant – statutory statements of Westminster’s continuing power to legislate in devolved areas into an unexpected and highly restrictive constraint on devolved lawmaking powers.
What can be done to achieve more satisfactory devolved boundaries?
Parliamentary sovereignty obviously places limits on the extent and nature of reforms to devolved boundaries that are achievable. Boundaries cannot be legally entrenched, so will always be vulnerable to unilateral change or override; and the fact that devolution is not federalism will necessarily condition how judges approach boundary disputes. Nevertheless, some practical steps could be taken to improve the stability and transparency of the limits on devolved legislative powers, and restore a measure of autonomy, effectiveness, predictability and accountability to lawmaking in devolved policy areas.
Reform should begin with the rationalisation of the existing devolution statutes: much could be done to ensure a more consistent and principled set of boundaries across the three devolved territories, and to remove some of the more problematic aspects of the current arrangements. For instance, I advocate removal, or at least significant tightening, of the UK Government’s veto powers, and of restrictions on the devolved legislatures’ ability to modify UK legislation in devolved areas. The internal market framework also needs to be revisited, in particular to reduce the UK Government’s gatekeeper role in determining how much regulatory divergence is acceptable.
Secondly, urgent action is required to clarify and bolster the Sewel Convention. Various suggestions have been made for increasing the political salience of the need for devolved consent. But I argue that there is also a case for stronger legal underpinning of the Convention, in particular an advisory role for the courts in settling disputes about whether devolved consent is required.
Finally, judges need to be encouraged to give proper weight to the constitutional significance of devolution and to the conditions of effective devolved decision making. For example, I suggest adopting statutory presumptions that UK legislation is not intended to affect devolved matters, and that UK ministerial powers in devolved areas should exercised only with devolved consent. Both would further reinforce the Sewel Convention and restore predictability and coherence to the reserved/devolved boundary.
Working paper: The contested boundaries of devolved legislative competence. Securing better devolution settlements
The views and opinions expressed in this post are those of the author(s) and not necessarily those of the Bennett Institute for Public Policy.
