Tag Archives: reserved powers

Wales needs a larger Senedd, but a closed list system is not the best way to achieve it

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The Senedd in Wales recently voted to support plans to increase its membership, following the report of a special committee, which endorsed proposals put forward by Labour and Plaid Cymru. Laura McAllister argues that the need to enlarge the Senedd is clear, but that proposed changes to the voting system are flawed and could undermine public support for reform.

That the Senedd marked its twenty-first ‘coming of age’ birthday by seeking to recast itself with a fundamentally altered institutional shape should surprise few familiar with devolved politics. Wales is often referred to as the land of commissions and inquiries. Each of these inquiries into the most ‘unsettled’ devolution settlement has recommended that the Senedd should increase from its current 60 Members (MSs) to a figure between 80 and 100. The story of these inquiries can be found on the Senedd website.

I chaired the Expert Panel on Assembly Electoral Reform in 2017, which was charged with looking at the size of the Senedd, its electoral system and extending the franchise to younger voters. Our Panel’s recommendations were that:

  • The number of members should be increased from 60 to at least 80, and preferably closer to 90. We concluded that this was needed because the Assembly (its name was changed to ‘Senedd Cymru/Welsh Parliament’ in 2020) had acquired a much greater role than the one it had in 1999, and also that its powers were expected to expand further. We concluded that the Senedd could not be expected to continue functioning optimally and delivering for the people of Wales if it remained at its current size.
  • That a new electoral system should be introduced to accommodate this increased size and to make the relationship between votes cast and seats won more proportional. Our favoured system was Single Transferable Vote (STV) accompanied by prescriptive, legislative gender quotas, though the Panel also regarded a Flexible List system of proportional representation (PR) as a viable alternative.
  • That the minimum voting age in Senedd elections should be reduced to 16 as a means of boosting democratic participation.  We regarded it as essential that the lowering of the voting age should be accompanied by high-quality education about politics in schools and other places of learning. This last recommendation was enacted through the Senedd and Elections (Wales) Act 2020 and came into force for the 2021 Senedd elections.

There was deemed insufficient political consensus to advance our first two recommendations around size and electoral system change in time for the 2021 election, despite a report from the Senedd Committee on Electoral Reform chaired by Labour MS Dawn Bowden, which almost exactly replicated our report’s recommendations. This committee did acknowledge that time had effectively run out and instead called for legislation early in the Sixth Senedd to increase its size to between 80 and 90 Members from the 2026 election, with all MSs elected by STV.

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‘The festering issue’ – the legality of a second independence referendum

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With the Scottish government gearing up for a second independence referendum, questions have been raised about whether or not the Scottish Parliament can legislate for such a poll in a way that the courts will find lawful. In this post, David Torrance discusses the wording of the relevant legislation and the impact of subsequent caselaw, concluding that the prevailing legal understanding is that even a consultative referendum would be outside the scope of the parliament’s powers.

During the House of Lords’ consideration of what would become the Scotland Act 1998, Lord (Donald) Mackay of Drumadoon (a former Lord Advocate and subsequently a Scottish judge) told peers it would be ‘perfectly possible to construct a respectable legal argument’ that it was within the legislative competence of the soon-to-be-created Scottish Parliament to pass a bill authorising an independence referendum.

Lord Mackay added that he remained ‘convinced that the law on this matter should be clarified. If it is not then the festering issue as to whether the Scottish parliament is competent to hold such a referendum will rumble on.’ That was arguably a dictionary definition of prescience.

The debate, if not ‘festering’ does indeed ‘rumble on’ nearly a quarter of a century later, yet much of the commentary seems curiously circular, turning over arguments which might have been relevant in 1998 or 2012 but are less so in 2022. Chief among these is the idea that an ‘advisory’ or ‘consultative’ referendum might pass muster if the dispute were to reach the Supreme Court.

But first let us return to the Lords in 1998. Speaking for the government, Lords Sewel and Hardie (respectively a Scottish Office minister and the then Lord Advocate) were clear that an independence referendum bill would ‘relate to’ the reserved matter of the Union between Scotland and England and would therefore be ultra vires and outside the competence of the Scottish Parliament. As Lord (David) Hope of Craighead later observed, ‘the Scotland Act provides its own dictionary’.

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100 years of the Government of Ireland Act: how it provided a model for Westminster-Edinburgh relations

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The Government of Ireland Act 1920 is 100 years old tomorrow. David Torrance examines the legislation and its impact, arguing that a number of the constitutional conventions that regulate relations between Westminster and Holyrood have roots in those that applied to Stormont between 1920 and 1972.

Wednesday 23 December marks the centenary of royal assent for the Government of Ireland Act 1920 (the ‘1920 Act’). That this created the part of the UK known as ‘Northern Ireland’ and its border is well known, but its devolution settlement – a parliament, government, governor and prime minister – has largely faded from public consciousness.

As the historian Graham Walker has observed, Northern Ireland ‘serves as a reminder that devolution and constitutional change has a long, complex, and fascinating history, and did not just appear magically at the end of the twentieth century’ [1]. Indeed, this blog will argue that many of the constitutional conventions now associated with Holyrood-Westminster relations have antecedents in those which developed between Stormont and the UK parliament between 1921 and 1972. There was also one major difference, self-determination, analysis of which concludes this piece.

A ‘sound custom’ of non-interference

Speaking during Lords consideration of the Scotland Bill in 1998, Lord Sewel observed that ‘as happened in Northern Ireland earlier in the century’ the government would expect ‘a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament’. This would later come to be known as the Sewel convention.

The Northern Ireland precedent acknowledged by Lord Sewel was established in 1922 when Home Secretary Edward Shortt (who had responsibility for GB-NI relations at the time, as there was no Northern Ireland Office) advised withholding royal assent for a bill abolishing the Single Transferable Vote method for local government elections (a matter ‘transferred’ to Belfast). When Northern Ireland’s Prime Minister Sir James Craig and his Cabinet threatened to resign, assent was granted.

By 1953, a Treasury document could state that:

In practice the United Kingdom Parliament refrains from legislating on matters with which the Northern Ireland Parliament can deal, except at the request and with the consent of Northern Ireland. It is recognised that any departure from this practice would be open to objection as impairing the responsibility which has been placed on the Northern Ireland Parliament and Government.

HM Treasury, Northern Ireland, the Channel Islands and the Isle of Man: A Treasury Paper, December 1953, page 9
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Politics, courts and the UK’s single market

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image_preview.jpgBrexit is likely to pose numerous legal questions about how the various parts of the UK relate to each other once the UK leaves the EU. Deborah Mabbett argues that the recent Supreme Court decision on prorogation is therefore unlikely to be the last time the judiciary is called upon to decide a matter related to Brexit.

Even among those who welcomed the Supreme Court’s decision on the prorogation of parliament, there has been concern that it has entered into dangerous new territory. It might have been forced there by a Prime Minister who failed to observe convention, or by a parliament that resiled from its duty to remove a government which has no majority, but forced it was, and this is a source of concern and regret. Several commentators have argued that the decision paves the way for a nasty and unpredictable election structured around a populist opposition of courts and parliament versus ‘The People’, and indeed those who see Dominic Cummings as an evil genius fear that this was the intention of the prorogation in the first place.

For those seeking a calmer view, the Court is clear in its self-assessment that, far from entering new territory, it is firmly placed on ground it has held all along. It has upheld the rule of law, in the specific sense of imposing limitations on arbitrary authority. This is the daily bread and butter of administrative law, of which there is a great deal more than excitable commentators seem to realise. Below the public gaze, the courts have dug in their heels over countless daily exercises of executive power, including the mistreatment of immigrants, the removal of welfare rights and the denial of access to justice. True, the arbitrary power challenged in these cases is not exercised by the contemporary king—the Prime Minister—but by the agents and minions of the state. Escalating the level of scrutiny to the actions of high political figures makes the prorogation decision a matter of constitutional rather than administrative law, but law it is.

On what grounds can it be claimed that the Supreme Court’s decision is ‘political’? The domains of law and politics cannot be defined by their subject matter, which clearly overlap across great swathes of social issues. We must look instead for differences in method and modes of reasoning. The characteristic method of politics is the structured antagonism of government and opposition, organised around the general political orientations of left and right. The belief that the Court had made this kind of decision seems to be behind the claim of Toby Young and Douglas Carswell, among others, that the prorogation judgment calls for action to ferret out and expose the partisan leanings of the justices. Yet left and right partisanship was obviously beside the point in the decision. Continue reading →

Is the UK-Scotland Supreme Court case the start of a new phase of constitutional conflict?

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The UK and Scottish governments are engaged in a legal dispute about the Scottish Parliament’s Brexit legislation, leading to the matter being argued before the UK Supreme Court on 24 and 25 July. Akash Paun fears this could be the start of a new phase of conflict between Westminster and Edinburgh.

In July, the UK and Scottish governments squared off at the UK Supreme Court in a case relating to the Scottish Parliament’s EU ‘Continuity’ Bill (the Continuity Bill) and whether or not it is constitutional, in light of the provisions of the Scotland Act 1998.

The purpose of the Continuity Bill is to ensure there is continuity in Scottish law after Brexit. It retains EU law in devolved areas such as the environment and food standards, and creates powers for Scottish ministers to amend the law so it can operate effectively outside the EU. It therefore has a similar purpose to the UK government’s European Union (Withdrawal) Act (the Withdrawal Act), which was passed at Westminster in June, controversially without Scottish consent for the devolution provisions.

The Continuity Bill was passed by the Scottish Parliament in March, but two of the UK Government’s senior Law Officers, the Attorney General and the Advocate General for Scotland, referred the bill to the UK Supreme Court in April. This is the first time a bill passed by a devolved parliament has been challenged in this way. A similar continuity bill for Wales was also passed in March, but it is now being repealed following agreement between Westminster and Cardiff over the terms of the Withdrawal Act. Both the Welsh and Northern Irish governments were represented at the hearing. 

This is a complex case, as more than one of the judges themselves remarked during the proceedings. Judgment is expected in the autumn, and the Continuity Bill could be ruled within or outside the competence of the Scottish government, or it could be referred back to Edinburgh for amendment, in order to make it compatible with UK law. Continue reading →