Constitutional Change in Modern Britain

8/3/2019 Constitutional Change in Modern Britain

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CONSTITUTIONAL CHANGE IN MODERN BRITAIN

CONSTITUTIONAL CHANGES AND CONSTITUTIONALRENEWAL THE OLD CONSTITUTION

The reign of Edward III had a major influence over English Law. Prolificlegislation was passed during this period. New relationships bw the Law, the Crownand the Individual took shape.

The flexibility inherent to the so-called Cons. Has accommodated majorevolutions, although a global rethink was never implemented nor even contemplated.

In 1292 were published the Year Books, a collection of text containing theessence of legal argument along with counsel and judges opinions. These law reportsaccount for the development of the legal process and its influence.

Notwithstanding, legislation gradually prevailed over the other legal sources inthe law-making process. The relationship bw the Parliament and the Monarch was

settled in favor of the Parliament after a drawn-out tug-of-war. Henceforward,parliamentary authority in raising taxes and authorizing expenses becameunchallenged.

Prerogative powers, theretofore exercised by the King, often arbitrarily, wereoverturned by the Parliament twixt 1640 and 1642. It was a defining period inconstitutional history, harboring the triumph of Parliament.

Around 1660, judicial power was also reshaped. David Keir asserts, in TheConstitutional History of Modern Britain, that from then on, the relations of thegovernment and the people were left for the courts to determine. Nevertheless theprocess was slow and the judiciary was still a highly centralized body, the local courts

being monitored by the higher ones.

A constitutional monarchy soon bloomed, along with the powers ofParliament. As a result of History, a constitutional law did not appear in the Frenchmeaning of the term (i.e. a preeminent legal document setting out the rights of theindividual and the balance of powers). No special meaning is ascribed to the phraseconstitutional law. For example the adjective unconstitutional bears no specialmeaning except that of being contrary to a customary Common Law principle.

Anthony King states, in The British Constitution, that Constitutional law inthe UK, like the Constitution itself, has no clearly defined boundaries and its scope, asa result, is as broad and as narrow as the individual constitutional lawyer likes todefine it. Oftentimes, judges favor the phrase Common Law principles overconstitutional rules.

Stricto sensu, constitutional law defines the monarch and the right ofaccession to the throne. Lato sensu, it implies a form of public law rulingadministrative law, the role of the State, and the rights of the citizen. The currentarrangement of the British Cons. may be seen under this latter conception.

From medieval times, through conventions, other unwritten rules and a longparliamentary tradition, the Constitution developed without a written outline. Butsince the 1980s, fundamental constitutional changes have occurred (at the time, M.Thatcher was in office, only to be replaced by the New Labor in 1997). After centuries,the UK has reached a point where a proper Constitution is required, fully written and


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clearly asserting the balance of powers. It should provide for checks and balancesagainst any abuse of power, along with a collection of human rights.

Iain McLean, in Whats Wrong with the English Constitution, considers thatthe British Cons, the UK Cons, does not actually describe how people behave andhow they ought to behave. It fails to do either. It is not a correct description and it has

no persuasive force.

I THE OLD CONSTITUTION/THE MAINCHARACTERISTICS OF THE UK CONSTITUTION

Nobody knows what the Constitution really is. The absence of a written text,and the difficulties in defining the powers, give rise to many a doubt.

Lord Bingham: I disagree with the view that there is no written Constitutionin Britain. It is mostly written, but it is not entrenched.

A large number of provision is not codified, yet some major constitutional

developments can be displayed:- 1215, the Magna Carta limited the powers of the King and promoted the ideal ofswift justice.- 1689, the Bill of Rights further restricted the powers of the King and extended thatof the Parliament. It claimed that the monarchy, the Crown itself, was subject to thelaw, and that Parliament was the sole governor of the land. Also, it stated that therights of the individual were free from unlawful interference as regards privateaffairs.- 1701: the Act of Settlement established the independence of the judiciary- 1911: the Parliament Act abolished the House of Lords veto powers (establishing thesupremacy of the House of Commons), and reducing the maximum duration of

Parliament from 7 to 5 years.- 1973: European Communities Act, giving EU law precedence over UK law.

The UK constitution is not so much an unwritten rule as an uncodifiedone.

A AN UNCODIFIED CONSTITUTION

This peculiarity is only to be found in 2 other countries, New Zealand andIsrael.

1) Definition of a constitution:According to Vernon Bogdanor (cf. The New British Constitution), aconstitution has 3 main aims: to provide a kind of rallying cry (through statements of

values such as citizenship), to provide an organizational chart of government and tosecure the rights of individuals.

In a nutshell a constitution can mean:a) A simple document or a collection of documents (which the UK lacks)

b) The rules determining political conduct. In that sense, the UK has a constitution.c) A set of the of the most important rules and common understandings in a givencountry, that regulates the relations between that countrys governing institutionsand the relations between that countrys institutions and the people of the saidcountry. For example, the rule providing for free and fair elections, or the fact that the

leader of the majority party in the House of Commons becomes Prime Minister.


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2)A non-entrenched constitutionIt is a major characteristic of the UK constitution. It is not a superior norm, and

thus does not prevail over other legal sources. It is flexible (as opposed to a rigidcons), unitary (and not federal) and practical (rather than theoretical or doctrinal).

3)A flexible constitution, easy to changeThe British constitution is fairly easy to overhaul. It need not be amended

through any special procedures. No legal mechanism has been set to bring aboutchanges.

Anthony King: The British constitution is never amended. It can only bechanged as a result of conventions (i.e. political agreements). In that process, pre-existing customs and practices play a major role.

4)The importance of conventions, pre-existing custom and practiceNo legal rule, no Statute expressly deals with the principle of Stare Decisis, or

with the office of the PM. These matters are left for the conventions to determine,without codification (i.e. the enactment of a methodical planned collection of legalrules organized in articles, expressing the general principles governing a determined

branch of the law).Conventions, as opposed to codification, are essential rules of political

behavior (including the main practices of governments) difficult to categorize in anylegal sense, yet keeping some legal authority. They have an enduring quality, andadapt easily to a governments practices. They stem from custom, habit, and are not a

product of either judicial or legislative intervention. Most of them developed duringthe 18th and 19th centuries.

5) No rigid or formal separation of powersSeparation of powers: this principle provides that amongst the 3 powers, none

dominates the others, and a single person cannot occupy a position in all 3 of them.This is not altogether the case in the UK.

Ex: before the Constitutional Reform Act (2005), the Lord Chancellor was atthe same time a member of the Cabinet, a judge, the head of the Judiciary, and thehead speaker of the House of Lords. This anomalistic position dated back from a 15 th

century convention. Today, the Lord Chancellor is merely the LC and secretary ofState for Justice.

AS A CONCLUSION, many experts and commentators still challenge thevery existence of the British constitution. On the other hand, this blur-borderedconstitution is widely praised for its flexibility.

Justice Hale, of the UK Supreme Court, stated that the ECHR is a livinginstrument, which grows within its own natural limits. This statement can beapplied to the British Constitution, which adapted to historical changes whileremaining fundamentally a Common Law traditional constitution. It has an eclecticquality which makes it remarkably unplanned and unwritten.


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B THE RULE OF LAW (ROL) AS A PRINCIPAL RESTRAINT ON THESTATE

Cf. Tom Bingham, The Rule of Law.

One of the main purposes of any constitution is to ensure that individuals andorganizations are protected against arbitrary powers and intrusions by the State. Itshould make it impossible for a countrys rulers to misuse or abuse their power, thussetting the principle restraint on the State in its relations with the citizens.

The State, including the monarch is therefore bound by the law.Cf. Henry de Bracton (13th century lawyer): the King shall not be subject to man butonly to God and the Law.

In that sense, the role of the courts is to make sure that the government isabiding by the law, while identifying and upholding the basic rights of man(prominent role).

1) Diceys definition ofthe RoLIn the UK, some legal writers have had a key influence on the Rule of Law and

its theory. Dicey, for example, stated in hisIntroduction to the Study of the Law ofthe Constitution, that the Rule of Law is holding in check arbitrary or discretionarypower.

Until recently (and more especially until the Constitutional Reform Act passedin 2005), the RoL was the mere product of (unwritten) Common Law principles.Dicey identified 3 meaning of the concept:

a) Negative liberty: only a breach of the law might result in punishmentdetermined by the ordinary courts of law.

No man is punishable or can be made to suffer in body or goods except for adistinct breach of law established in the ordinary legal manner before the ordinarycourts of the land. A conduct is lawful unless it contravenes the law.

Dicey was also opposed to continental administrative law, which granted toomuch arbitrary power to State officials. He claimed that ordinary laws applied equallyto State officials and ordinary citizens. According to him, both were on an equalfooting as to their submission to the law and their relations.

Ordinary courts should be able to control the arbitrary exercise of administrativepower and to provide redress for grievances.

Actually, Diceys ideal of the RoL was the primal crux of his definition. Hedeemed the public servants to be responsible before ordinary courts.

b) No one is above the law, whatever their status. No man is above the lawand every man, whatever his rank or condition, is subject to the ordinary law of theirrealm and to the jurisdiction of ordinary tribunals. Therefore, the law should bindevery official (although Dicey did not specify whether the monarch himself was

bound by the RoL, the issue being a prickly one at the time).

c) Liberties are better protected by judges than by a written constitution.The constitution is pervaded by the RoL on the ground that the general principle of


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the constitution is the result of judicial decisions determining the rights of personsbefore the courts, whereas in foreign countries this protection derives from theconstitution. Our constitution, in short, is a judge-made constitution.

Dicey saw no need for a Bill of Rights. He thought the ordinary remedies ofprivate law sufficed, without a codified constitution. The right of individuals being

defined and protected by the judges, people whose liberties are threatened could thusseek redress before the courts. For instance, he thought the Habeas Corpus Act to bea sufficient protection for people arbitrarily arrested or detained.

! Possible exception: Dicey admitted that Parliament could assert itspreeminence in case of conflict with the RoL, and override it these exceptions werelikely to empty the RoL of its substantial contents, especially if Parliament were tolegislate against the RoL.

2) The RoL and its implications todaySome ambiguities remain in Diceys theories, and some statements he made

must be reconsidered in the light of modern developments.

a) The growing importance of administrative lawDiscretionary authority is unavoidable in some areas of the government,

paving the way for some abuses: the power to detain individuals without trial, forinstance, should be precluded by legal safeguards.

Also, the statement assuming equal subjection of all the citizens to ordinarylaw is a moot point in Diceys analysis. Indeed many distinctions are made betweencategories of persons within the legal ambit (employers are submitted to a differentregime than that of employees, for example), and equality before the courts must also

be tempered (a provider might be judged more severely than a customer).Therefore, administrative courts are required to protect the individual against

the doings of the State. In 2007 in the UK, a section of the High Court was renamedAdministrative Court. There is a growing need for the development of a properadministrative law, as the public litigation is steadily increasing.

It is no longer possible to share Diceys faith in the Common Law to protect theindividual liberties against the State. Nowadays, Parliament is able to grant thegovernment executive powers liable to affect the peoples individual liberties.

Ex: in 2001, government authorized the indefinite imprisonment without trialof foreigners suspected of terrorism.

Also, it is now widely acknowledged that a formal Bill of Rights is wholesomeand necessary. Thus, the ECHR was incorporated in 1998 by the Human Rights Act.

b) The new status granted to the RoL (Constitutional Reform Act,2005)

This reform wrote into Statute the RoL, which is no longer an unwrittenprinciple. The act provides for the protection of the existing constitutional principleof the RoL in its section 1.

Enshrining the RoL in a statute bestows upon it a constitutional value. Itresults even harder to dismiss the principle, which has acquired a new legal force.

The only remaining problem is the absence of definition of the RoL, giving wayto free judicial interpretation


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------------------------------------------------So it appears that most of Diceys views belong to the 19 th century, and have

been challenged by the historical and legal developments that influenced the legalthink tanks. But today, the RoL is still associated with the ideal of equality before the

law, and the submission of the government before the law. The RoL is a principleaiming primarily at the protection of individuals from arbitrary power by the State.

3) The international dimension of the RoLa) The Universal Declaration of Human Rights (1948) reads as follows:

Whereas it is essential, if man is not to be compelled to have recourse, as a lastresort, to rebellion against tyranny and oppression, that human rights should be

protected by the rule of law

b) The ECHR(1950), in its preamble, solemnly declares that:The governments signatory hereto, being members of the Council of Europe

[are]resolved, as the governments of European countries which are likeminded andhave a common heritage of political traditions, ideals, freedom and the rule of law,to take the first steps for the collective enforcement of certain of the rights stated inthe Universal Declaration []

It appears clearly that the RoL is part of the historical heritage of the countriesthat ratified these treaties. The principle is inherent and almost co-substantial to eacharticle of both conventions.

AS A CONCLUSION(to this chapter): even if some aspects in Diceysanalysis have become inadequate, the meaning of the RoL has nevertheless

broadened to encompass the ideals of justice and fairness. The principlecontemplates a democratic society in which freedom and equality before the law areguaranteed to every individual.

To quote the late Lord Bingham, all persons and authorities within the State,whether public or private, should be bound by and entitled to the benefit of laws,publicly and prospectively promulgated and publicly administered by the courts.

In a nutshell, the RoL provides for 1) an adequate protection of fundamentalhuman rights, and 2) the compliance by the State with its obligations in national and

international law.

In French, the expression could be translated into la prminence du droit,la Rgle de droit or lEtat de droit. It loosely overlaps the concept of the dueprocess of law enshrined in the American Constitution.

For an additional approach, cf. Robert McCorquodale,The Rule of Law inInternational and Comparative Context.
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C PARLIAMENTARY SOVEREIGNTY (PS)

The assessment of PS lies at the heart of the so-called British Constitution.There is much dispute around this concept, which refers to the idea that Parliament

can legislate the way it chooses. In short, Parliament is the supreme law-giver, andcannot be superseded. In the UK prevails the legal supremacy of Statutes (or Acts ofParliament). That implies Parliament can make or unmake any law.

Lord Haimcham states that the only limitations on the power of Parliamentare political and moral.

However, a rival concept is to be found in popular sovereignty. The framers ofthe US constitution favored this theory, only to be followed by Australia. Some Britishlegal drafters would like to include popular sovereignty in a hypothetical constitution.

1)Walter Badgehots perception of parliamentary sovereigntyThis journalist and legal thinker believed that sovereignty resides only in

Parliament. In The English Consitution, he assumed that the secret of the UKconstitution was the fact that the executive and legislative branches, rather than

being separated, were inextricably bound with each other. For instance, the Cabinetderives its authority from the legislature.

This theory, today controversial, is still a landmark to dwell upon.

2) Diceys definition of PS:It is very close to Badgehots. They both viewed the UK as a single and

indivisible entity. His definition is bombastic, emphatic and absolute:

The principle of PS means neither more nor less than Parliament has, underthe English constitution, the right to make any law whatever.

No person or body is recognized by the law of England as having a right tooverride or set aside the legislation of Parliament.

(At that point, it must be specified that Parliament comprises the House ofCommons, the House of Lords AND the Monarch).

Whatever Parliament did was done. No one can pronounce void anyenactment of Parliament.

What Parliament did, another Parliament could undo. No Parliament couldbind its successors.

No body of law is superior to the ordinary law.

In fact major constitutional changes, such as abolishing the House of Lords, could beaccomplished through ordinary Acts of Parliament.

II - OLD CONSTITUTIONAL ARRANGEMENTS UNDERSTRAIN

Until recently, proposals for substantial reforms have been rejected, due to thenature of the British C: experts thought that organic changes were sufficient, and did

not see any necessity for a formal overhaul.


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However, the greatest change that the UK has witnessed is its membership tothe EU (January 1st 1973).

A THE EUROPEANIZATION OF UK LAW

Cf David Keir, The Constitutional History of Modern Britain.

This change took the form of the EC Act passed in 1972 by the Parliament, butinly implemented in 1973. This act itself is considered as part of the C.

This membership introduced the primacy of the Community law, thus creatinga new legal order. It introduced a sort of hierarchy of norm, a notion unknown to UKCommon Law.This membership has had long term consequences over British constitutionalarrangements.

Influence of the EC case law over the British Common Law:

The apex of the EC/EU is the ECJ, which makes sure that EU law is upheld inall the member states. It had a considerable influence in the dvp of judicial thinkingin the IK, and over the authority of the Westminster Parliament (considerably

weakened), seriously challenging the doctrine of parliamentary sovereignty.

Tensions soon developed bw EU law and UK law. For example, a conflictopposed the UK and Spain because of the Merchant Shipping Act of 1988, whichcreated various requirements such as nationality and domicile in order to restrict theuse of UK fishing quotas to UK-based fishing fleets. Spain challenged the

compatibility of this national law with EC law, which led to the R vs Secretary of Statefor Transport ex parte Factortame ltd. The case was examined by the appellatecommittee of the HoL (highest court of appeal at the time). The Law Lords held thatthe Westminster statute was inconsistent with EC law, and that it should give way toit.

Lord Ridge: If the supremacy within the EC was not always inherent in theEEC treaty, it was certainly well established in the JP of the ECJ, even before the UK

joined the EC.The limitation of State sovereignty by Parliament wasVOLUNTARY. The UK Parliament has always accepted to make the appropriateamendments to national statutes declared incompatible with EC law.

The Law Lords put forth some landmark principles:- The UK courts must give way to EC law, even if this means acknowledging that partof an act of Parliament is incompatible with EC law.- They must not apply UK statutes whenever there is a potential conflict with EC law.

The UK courts are required to make sure that UK law is consistent with EC law.

The idea of integrating Common Law and Civil law approaches was revolutionary.The EC law is considered as a shared inheritance of both traditions.

B CONTROLLING THE CONSTITUTION


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The UK courts now hold that Parliament may bind its successors. Landmarkcase: Jackson and others VS Attorney General. The validity of the Parliament Act(1949) was at stake.

The Parliament Act of 1911, together with that of 1945, significantly reducedthe powers of the HoL, notably its veto powers and its powers over financial bills.

Here, the provision of the 1911 Act dealing with the duration of Parliament wasat stake. It forbade Parliament from extending its life without the HoL consent.

Forbidding the repeal of such Acts introduced a hierarchy between statutes,acknowledging the existence of ordinary statutes and constitutional statutesimpossible to repeal. It challenged the doctrine of Parliamentary sovereignty.Toburn case: some acts are o important for constitutional arrangements that theycannot be repealed by Parliament.

Widely speaking, these cases gave the conditions defining ordinary and

constitutional statutes. A constitutional statute must deal with the legal relationshipsbetween citizens and the State, or enlarges/diminishes the scope of (what is nowregarded as) fundamental constitutional rights. Constitutional statutes cannot be changed without leading to a major political orinstitutional crisis.Ex: Statutes introducing the Devolution process, Human Rights Act (1998)

The incorporation of the ECHR also questioned all constitutionalarrangements. Despite the reliance of English law on precedent, the UK has movedtowards the legislative identification and protection of HR.

The HRA has changed the very nature of judicial powers and rights. It is at the

center of the relationship bw the citizen and the State. It was close to a revolution inthe UK public law, creating for the first time a clear legislative set of basic rights on

which administrative decisions could be made. It provided UK judges with a singlesource of rights

D THE 1997 NEW LABOUR GOVERNMENTS PROGRAM FORMODERNIZATION:

It aimed at democratizing UK institutions. These reforms brought major changes tothe constitutional arrangements, altering the balance of powers bWM parliament, thecourts and the Government.

The 1998 Devolution Acts to Scotland, Wales and Northern Ireland: ittransferred limited powers (either legislative, administrative) from the center to theperiphery, without transferring the sovereignty.

The aim was to give a form of limited self-government to the Celtic nations (orCeltic Fringe), to allow them to deal with their local issues at a local level. England

was excluded from the process.It was not merely an administrative process. Unlike France (unitary Republic),

a limited autonomy was granted the 3 side-nation comprising the UK in order to fightnationalism in these nations. It was a form of compromise to ease their concerns.

Subordinate assemblies and legislatures were given to them. Recently, the full fiscalautonomy of Scotland is examined by the Westminster Parliament, and was passed.


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This process raises identity issues. Also, it was based on the principle according to

which the only sovereign Parliament was that of Westminster. It remains the only oneentitled to pass legislation for the whole Nation, but local subordinate Parliaments

were given to Scotland, Wales and Northern Ireland. For example, the Scottish

Parliament can legislate only for Scotland. A federalizing process is thus under way.

Currently, the SNP (Alex Salmond) aims at organizing an independence referendumto break apart from the UK

The joint committee of the HoC is examining a white paper dealing with thecomposition of the HoL, aiming at replacing its members by fully-electedrepresentatives. The report will be produced by 2012.

IIBRITAINS NEW CONSTITUTION

HUMAN RIGHTS AND THE RECEPTION OF EU LAW

Fundamental rights have historically been protected within the Common Lawtradition.

I THE COMMON LAW UNWRITTEN CONSTITUTION ANDINTERNATIONAL LAW

A PARLIAMENTARY SOVEREIGNTY AND CONSTITUTIONALDUALISM

The Westminster Parliament has been considered as the supreme lawmaker inthe UK. Norms of international law cannot have any direct impact within the UKsystem unless Parliament introduces legislation for that purpose.Parliamentary sovereignty is today very much in doubt. It implies the absence ofconstitutional review of the Acts passed by the Westminster Parliament.Constitutional dualism is based on that doctrine.

It entails that International law is regarded as absolutely distinct from nationallaw. International relations in the UK are conducted on the basis of the exercise ofprerogative powers by the Executive. Parliament must legislate to give effect to atreaty.Royal prerogatives such as the power to wage war are exercised by the executive.There is officially no need to consult the Parliament. Proposals have been made totransfer these prerogatives to Parliament.

The UK courts have developed a range of decision-making techniques. Forexample, the judicial refusal to prescribe any limits to Parliamentary powers. Primarylegislation cannot be monitored by any authority. The doctrine of parliamentarysovereignty puts the emphasis on a form of judicial self-restraint endorsed by the

courts.


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At a time when many are worried as to how far the ECHR might develop beyond thescope contemplated by its framers, it is necessary to examine whether there are

boundaries to its growth.The ECHR was largely drafted by British lawyers in extremely precise terms, in

terms more precise than the continental lawyers intended it to be. Each and every

word was carefully brought about.

But the ECHR has evolved, as the living instrument it is. It goes back as far as1978, Tyrer vs UK: a schoolboy, on the Isle of Man, was sentenced by the juvenilecourt to 3 strokes of the birch for taking part in an assault upon another schoolboy.The Strasbourg Court held that birching was a degrading punishment contrary to art3 of the ECHR.They stressed that the ECHR is a living instrument, which must beinterpreted in the light of present day conditions.

Cf. image of a living tree, having a life of its own, yet able to grow and dvp onlywithin its own limits. There are 3 dominant ideas in the evolution of the ECHR:

1) Purposive rather than literal interpretation of the words.2)An interpretation in the light of present day dvps and practices.Ex: if most European countries consider that a corporal punishment is degrading, it

will influence the interpretation of the ECHR.

3)Airey vs Ireland, 1979: the rights protected by the convention must be practicaland effective rather than theoretical.

The late Lord Bingham argued, in the case Brown vs. Scot, 2003, that in interpretingthe convention, it is generally to be assumed that the parties have included the terms

which they wished to include, on which they were able to agree. Thus, particularregard must be given to the expressed terms of the ECHR.Bingham thought there are limits to what a national court might do wheninterpreting the convention, saying; it is of course open to member States to providefor rights more generous than those guaranteed by the ECHR, but such provisionsshould not be the product of the interpretation of the convention by the nationalcourts, since the meaning of the convention should be uniform through the memberStates party to it.The duty of the national courts is to keep abreast of the Strasbourg JP as it evolvesovertime, no more, no less.

There are at least 4 ways in which this JP has evolved.

B THE DIFFERENT WAYS IN WHICH THE CONVENTION JP HASEVOLVED

1)Autonomous conceptsAngel vs The Netherlands, 1976: it was held that States could define conducts into theconcept of a criminal charge for the purpose of a right to a fair trial, but not out of it.If a State has committed itself to some minimum standards, it cannot contract out ofit Some key terms can have a same meaning across member states, but themeaning can evolve (ex: discrimination can now encompass indirect discrimination).


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Therefore, the terms of the conventions can be applied to situation which may nothave been contemplated by the original framers.

2) The implication of rightsSome implied rights may evolve, such as the right to access to a court to determineones civil rights and liabilities, which is inherent to the right to a fair trial.

Some implied rights raise issues. Cf art 3 of protocol 1, the right to hold free electionsat reasonable intervals by secret ballot, under conditions that will ensure the freeexpression of the opinion of the people in the choice of the legislature. It impliesobviously that the people have the right to vote, but does not dictate the votingsystem, nor who is entitled to vote. For example, members of the HoL cannot vote forparliamentary elections.

The right of prisoners to vote was recently put in limbo by the Britishgovernment, which proposed a ban for those serving 4 or more years in prison.

3) Positive obligationsCf. Marckx vs Belgium, 2006: the right to respect for family life requires more

than the State should not interfere in it. It requires the law to recognize that thefamily life exists, and to create the circumstances in which it can dvp.

Also, as to the regime of the asylum seekers, the HoL, as the highest court ofappeal, held that it amounted to inhumane and degrading treatment to deny themaccess to State support. The HoL went beyond the JP of the Strasbourg Court.

4)The narrowing of the margin of appreciation (of member states)The difficulty is to grasp the limits of the ECHR. What matters is to reflect the

common European understanding of the convention.

DEVOLUTION THE ASYMMETRICALCONSTITUTION

INTRODUCTION

I AN HISTORICAL AND POLITICAL PERSPECTIVE ON DEVOLUTION

The UK of GB and NI was settled in 1801 after the Act of Union.Britain had been founded in 1707 (England and Wales + Scotland).

For centuries, Britain has been considered a strong unitary state, or rather a uniqueState of 4 different nations. It was extremely centralized in London for a long stint. Atthe same time, in the 19th century, it was very unionist.

But as time lapsed, the appeal for Home Rule, e.g. a degree of self-gov,developed. This feeling grew stronger, until becoming a major political issue in the1970s.


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2 nationalist parties were born during the interwar period: the Welshnationalist party (Plaid Cymru) in 1925 and the SNP in 1934. At the beginning, they

both had limited results, until the late 1960s. Turning point: when the leader of PlaidCymru won a seat in Parliament (1966), real breakthrough. It illustrated the rise of anationalist movement in Ireland and Scotland.

At that time, the British gov. realized it had to find a way to stop thesenationalist movements, for a national partition of the state loomed heavily. It becamenecessary to accept a form of compromise, a self-government of sorts for the Celticfringe. This awareness bloomed during the labor gov led by James Callaghan.2 bills were introduced in 1978, attempting to grant a form of self-gov, only to berejected in 2 referendums held respectively in Scotland and Wales in 1979. There wasnot enthusiasm aplenty for this big leap into the unknown.

Afterwards, nothing much happened for almost 2 decades.

Apart from the rise of nationalist movements, another major change in thepolitical landscape of the UK served as a catalyst to the devolution process. Theconversion of the Scottish Labor Party and the Scottish People to the process wasmuch influenced by the Thatcher gov. The reaction to the policies led by the wench w1979 and 1990 was inflamed. They were considered unfair British policies imposedupon Scotland and Wales, where a strong labor tradition is deeply ingrained. Theseparties, who were much more moderate than nationalists, soon realized that theycould use some self-government.Devolution did not come unwarranted, nor beset the British authorities aback.

Northern Ireland had experienced a form of self-government even before the

devolution process. After the partition of 1921, NI was granted its own parliament(the Stormont Parliament that legislated for NI). But this attempt at self-gov wasshort-lived. At the beginning of the 70s, the process stopped due to violent outbursts

between the 2 communities. Direct Rule was re-established in 1972.

Definition: Vernon Bogdanor,Devolution(1979): devolution can be definedas a process that involves the dispersal of power from a superior to an inferiorpolitical authority and which consists of the transfer to a subordinate elected body ona geographical basis of functions at present exercised by parliament.

The objective is to provide some degree of self-gov to Scotland, NI and Wales

on a territorial basis. This process is constantly on-the-move, even as we speak. Thetransferred powers can be administrative, executive, or even legislative.

The territorial dimension is of paramount importance, such as the limitedaspect of the transfer (of powers, and not of sovereignty). The bodies that emergedfrom the process are therefore intrinsically subordinate Thus the difficulty:transferring powers to the Celtic Nation whilst entreating them to remain submittedto the British sovereignty.Today, the only parliament enabled to legislate for the whole UK is that of

Westminster.

Nevertheless, the process is not isolated, and must be studied under the scopeof European integration. The recognition given to sub-state bodies by the Europeaninstitutions had a major influence.


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A parallel can be drawn with the granting of broadened autonomy in other EUcountries, such as Italy or Spain. The demand for self-gov was fairly dvped in EUcountries. A growing importance was given to regions having their own history andtraditions (such as Catalua).

Also, there was a very ambitious program of reforms undertaken by the gov ofTony Blair (from May 1997 onwards). This landslide victory was the starting point ofthe modern devolution process.

TB promised to introduce a Charter of Rights (HRA, 1998), the same yearthe West parliament passed 3 key Statutes (the Devolution Acts) giving a form of self-gov to NI, Scotland and Wales. They were followed by other breakthrough Statues(ex: HoL Act, 1999). The main objective behind all these reforms was to modernizeand democratize the country.

Devolution was introduced by Acts of Parliament, yet referendums were heldbeforehand in order to obtain the consent of the people themselves (it is noteworthythat today, only 2 national referendums were held: the EU referendum and the 2009

on the Alternative Vote System).Unlike the 1978 attempt, these referendums succeeded. Scotland voted

strongly in favor of devolution, with nearly of the electorate welcoming the change,especially the Scottish parliament. In Wales, the result was narrower; Welsh people

were less enthusiastic than their Scottish counterparts. Only 50.3% of the electoratevoted in favor, which proved detrimental for the Welsh institutions (which found itharder to assert their legitimacy and credibility).

This discrepancy can be explained by historical reasons. Scotland remainedindependent for a much longer time, and even after the Act of Union negotiated themaintenance of its legal and educational system.

Each form of devolution was different. These differences led to a processthat proved to be asymmetrical. Scotland experienced a more advanced form ofdevolution than Wales.

Also, the process has by far introduced the most significant change in Britainsconstitutional settlement in recent years.

The Celtic fringe has obtained a form of autonomy which, in some politicalanalysts mind, could be the 1st step in the breakup from the UK.

Devolution-processus de transfert dautorit legislative et/ou de regulation versdes parlements ou assembles lues au suffrage direct.

Until recently, D has proved to be a remarkably harmonious process, due to 2 factors:

1 The domination of Labor (the modern form of D being brought by TBsgovernment). Labor was still the 1st party in England and Wales.

2- The flexibility of D arrangements. D developed in a flexible and assymetricalframework based on constant adjustments.

II THE POLITICAL AND LEGAL PERSPECTIVES

A The nature of the 3 separate 1998 Devolution Acts of Parliament


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These were simple statutes, strikingly enough for foreign lawyer. In a countrydevoid of a written constitution, there has been an evolution giving more importanceto the written sources of the Common Law, aiming at a fully written constitution.

Also, very pragmatic reasons prompted the passing of 3 different Acts, which

reflect considerable variations in the territorial arrangements of the UK.

Theoretically, these statutes are subject to a revision by the WestminsterParliament, and could very well be repealed thus. And yet, such a u-turn Isunthinkable, as it would provoke a major political and institutional crisis.

Therefore, these 3 acts are de facto considered entrenched, and enjoy aparticular status, alongside the HRA of 1998. Some legal thinkers go as far asdeeming it a constitutional statute (arguably enough on a purely legal point of view)for they provide a complete system of rights, obligations and remedies concerning thegovernments of Scotland, Wales and NI.

There is kind of a contradiction between this constitutional nature and the

submission to parliamentary sovereignty. The framers of the D Acts had to make dowith these opposite prerequisites. Today, the only parliament entitled to legislate forthe whole kingdom is in Westminster.

However, there are a number of weaknesses in the general framework of D:- No official system of remedy to resolve disputes between the central and devolvedauthorities was provided.- Constitutional principles and arrangements dealing with the relationships betweenthese authorities were also lacking.- There was no global consistency, only piecemeal arrangements without majorguiding principles or a clear division of power (which is particularly true in Wales).

D was based on a number of asymmetrical reforms without legal guaranteesof legal competence.

Many efforts were made to develop alternative dispute resolution in order to avoiddirect confrontation bw the various devolved bodies and the central government.Their respective powers have been constantly adjusted outside litigation.

Nevertheless, devolved authorities acted under constrains preventing themfrom abusing their power, and making them abide by the sovereignty of the

Westminster parliament. The devolved bodies remain subordinate.

B Constitutional principles and arrangements governing therelationships between the devolved bodies.

Devolved bodies have to act pursuant to the ECHR and EU law, as well as toparliamentary sovereignty. Most of the times, the disputes were solved outsidecourts, but legal mechanism still existed to handle devolution litigation, in the 3separate Acts. Despite of the mainly asymmetrical features, efforts have been made toestablish a standard form of jurisdiction as to D issues.

At the apex of the judicial mechanism lied the Judicial Committee of the PrivyCounsel. It was originally set up to hear appeals from Commonwealth countries, and

still performs that task. But recently, the new Supreme Court of the UK (2009), maincourt of appeal of the UK, was given exclusive powers to hear D issues (along with the


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power to review and strike down the Acts of the devolved parliaments, whilst beingunable to declare null and void the acts of the Westminster parliament). It is thuspossible to challenge Scottish statutes on the grounds that they were passed ultra

vires, beyond the remit of the devolved body. This constitutes an embryo of judicialreview.

This judicial review is set after the enactment of the statutes, but other systemscontrol the pre-enactment process, endeavoring to secure the validity of these acts.The pre-enactment procedure requires the clearance of the Law Officers (highestsource of legal advice; as such, they are endowed with unique authority, and issuedecisions de facto binding). A Scottish bill must be accompanied with a ministerialstatement certifying that the parliament has acted within its remit, to check as earlyas possible the compliance with these requirements.

Also, a Scottish bill can be delayed for 6 months, during which it can bereferred to the UK SC.

Thus, in Scotland bills are drafted extra carefully to avoid further delay and the

sanctions of the UK SC. These legal threats have imposed a further need forconsistency in the legal drafting, and have very much influenced the members of the

Westminster parliament. The Scottish drafting is now considered a sterling model.

The D process in Wales has been much more limited. Nevertheless, Wales hasdeveloped its own internal checks over acts and measures of its devolved bodies(growing role of the Welsh Office of Counsel General). At its head is a chief legaladvisor, and this independent body provides legal advice to the Welsh assembly.

The D process has notwithstanding been characterized by the use of

diplomacy, negotiation. A great reliance on informal multilateral and bilateralagreements has prevailed. These agreements were inspired by the Scottishconstitutional convention, an independent body which provided the government withinternational advice (memorandum of understanding: intergovernmentalgentlemens agreement, legally unbinding, bw the central government and thedevolved bodies. It focuses on the need for corporation, sharing information,statistics and research It reflects the impulse to limit the role of the courts in the Dprocess).

These concordats (or agreements) have been successful. In the post-D UK,there have been no major inter-governmental conflicts. The process started in afavorable economical and political environment. Heretofore, the system has worked

fairly well, but the rise of nationalist parties (mainly in Scotland, with the SNP) hasfrayed this multilayered government. Also, fund-cutting reforms prompted by thefinancial crisis have rankled the devolved bodies.

III DEVOLUTION IN SCOTLAND

A The origin of the Scottish devolution

The campaign for a Scottish parliament was a long-drawn one, filled withfailures (in the 20s and 40s). Modern-day campaigns can be traced back to the mid-60s and the rise of the SNP.

Also, additional forces played a key role: the Scottish Labor Party, for instance,promoted its national identity and championed home rule. In fact, the early


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Scottish pioneers (ex: Kier Hardie, Ramsey McDonald) were supporters of aScottish parliament.

Nevertheless, the process was not a straightforward one. When Labor landedoffice with majority parliaments (before the 70s), it did not do anything about homerule. When it came back to supporting home rule in 1974, it recoiled before the rise of

the SNP which threatened its political supremacy in Scotland. This policy was astrategic one, and only became earnest in the 1990s, as a counter-reaction toThatchers policies. Groups such as Charter 88 promoted Home Rule.

The Scottish nationalist vote rose (in 1966-1967, 1973-1974, 1998-98), yet fellback each time, shaking Scottish politics. Before the rise of the SNP, the conservativesand the labor were growing more and more akin. But dissatisfaction towards theconstitutional arrangements for Scotland grew.

Also, among the nationalist, there was a strife between the advocates ofindependence and those defending a more gradual approach. Now that the SNP is the

majority party, the main objective is a referendum for national independence. Theywere those who brought back the issue of a Scottish parliament, which wouldnt haveexisted but for them. Scotland, for a long time, had its own parliament (before the1707 Act of Union). It was rather a matter of re-establishment. The Scottishparliament is now considered as a means towards independence, not an end in itself.

Nevertheless, a form of diffuse nationalism, taking different forms (forexample the Scottish Constitution Convention, has inspired the drafters of theDevolution Act for Scotland), reshaped the political landscape. The D process was theresult of all these claims for renewed governance in Scotland.

B The Scottish Parliament more than 10 years on

A wide range of legislative competence was given to it by the Scotland Act,passed in 1998 by the Westminster parliament. It mainly gave it a body representingthe Scottish nation. The Holyrood parliament, unlike the Westminster one, is mono-cameral, composed of 129 members elected for 4 years. The Scottish D process has, inturn, inspired the reforms of the English parliament.

The basic components for Scottish D are significant. Scotland was granted oneof the largest ranges of legal competences, except full fiscal powers. The WMparliament has kept in its remit the reserved powers, dealing with the constitution,political parties, foreign affairs, public service and defense matters. All the State

powers belong to the only national parliament, leaving Scotland with a generalcompetence over all other matters.

Section 27 of the 1998 SAprovides that the Scottish parliament enjoys ageneral power to make laws within its legislative competence, and only in Scotland. Itincludes education, law, courts, prisons, judicial appointments, economic dvp,environment, housing Scotland has enough leeway to abolish tuition fees and makehigher education more accessible to students. In terms of health whereas the WMparliament is discussing a reform of healthcare (introducing even more competitionand privatizing a lot), the Scottish parliament has voted a more progressivelegislation.

The Scottish parliament has primary legislative powers, and an overall controlover the Scottish executive (or government), which can issue secondary legislation.


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The Scottish parliament and government have therefore been given significantresponsibilities for many aspects of domestic policy.

The Scottish parliament is in charge of the election of the First Minister, whomin turn appoints its own ministerial team.

In the 1998 SA, a provision limits the powers of the S parliament, as if the WMparliament intended to bridle the powers granted to the S parliament. Cf. section 27 7: This section does not affect the powers of the parliament of the UK to makelaws for Scotland. Also, section 28 led to the increasing use of Sewel motionsenabling the WM parliament still enjoys the continued rights to legislate for Scotland,not only in reserved matters, but also in devolved matters under specificcircumstances.

Cf Vernon Bogdanor: What is the practical meaning of asserting thecontinuance of W sovereignty when such wide legislative powers are being devolvedto another directly elected body? There is almost a competition between the 2

parliaments, paving the way for tensions and fueling the debate of the English (orWestloathian) question, a proposal to replace theWM parliament by an Englishparliament entitled to legislate only for England.

The Scottish Parliament was also granted limited financial powers, but hasnever used them, because the whole d process was financed by grants voted by the

WM parliament, based broadly on the Scottish population. The Barnett formula isvoted once a year. It was introduced in 1978 as a temporary solution to finance theScottish devolution, but seems largely inadequate today. This formula has overfundedScotland for quite a long time (but the current economic turmoil has put this fair dealin jeopardy), eliciting a growing rancor from the English people.

Practical implications of the D process:

The traditional inclination towards more equitable solutions in Scotland hashad a strong influence. Liberal values, and a socio-democratic welfare State, weresought when trying to assert home rule. The Scottish parliament was considered a keycondition for the dvp of public services and socio-economic policies.

For instance, the vote for a free long-term care, and the abolition of tuitionfees, formed part of these progressive, innovative policies. Also, the S parliament wasthe one that initially voted the ban on smoking in public places. It was a pioneer in

social and economic policies. Transparency and accountability in publicappointments were also on the agenda.

On the other hand, although the S parliament was very active, the Sewelmotions were widely used, limiting the powers of the S parliament. The core of thecriticism regards the economic aspect of D. Cf. proposals of the Calmon commissionmade in 2009, Serving Scotland better Scotland and the UK in the 21th century.

Among the main recommendations, is the dvp of the taxing powers of the ScottishParliament - - Scottish rate of income tax - - and greater powers as to the use oftaxes levied in Scotland. Also, it was suggested to base the Barnett formula on thesocio-economic needs of Scotland, and no longer on the population.

C The future of Scotland


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The Scottish parliament was first conceived as a way to grant administrativeautonomy. Today, full fiscal autonomy is on the SNP platform. Since 1998, theScottish Parliament has become a central force in Scottish politics.

In May 1997, after 8 years of a labor-liberal coalition, the SNP was elected as aminority government for the 1st time, ousting the labor party from power. It was

considered as a turning point in the Scottish D process. The SNP relied on the liberal-democrats to govern. Since then, the SNP has gained an outright majority, gainingtraction, and commits to organizing a referendum on the independence of thecountry (and is in a position to do so).

The Calmon report did not only focus on economic grievances, but also aimedat making inter-government relations more formal, and at enhancing the legislativepowers of the S parliament.

IV DEVOLUTION IN WALES

The D process has been much more limited than in Scotland, until recently. It

has raised even more controversy. The results of the referendum were much tighterthan in Scotland, and the process took a more administrative form. A Government of

Wales Act was passed in 1998.

A The origin of the Welsh Devolution

Comparatively, the devolved powers appeared extremely limited, partly due tohistorical reasons: Wales, unlike Scotland, did not keep its own educational and

judicial system after the union with the UK, and nationalism is much more moderatethere. At least, the Welsh nationalism took a less political, and more cultural form(through the Welsh language, for instance). The Welsh saw the D process as a

ponderous, almost pointless one.Nevertheless, the GoW Act set up not a parliament, but a national ASSEMBLY,

composed of 60 members elected for 4 years. Wales gained its 1st ever democraticallyelected assembly. It was not a proper legislature.

Under the GoW Act, the status of the assembly was that of a bodycorporate,i.e. lacking a formal separation between the legislative and the executive. It was notentitled to pass primary legislation, and the transfer of powers was therefore onlyadministrative and executive. It did not have tax-raising powers.

The 1998 GoW Act, Part II, granted the assembly functions previouslyexercised by the Secretary of State for Wales. It regarded only the territorialadministration or local government. The assembly could not legislate directly for

Wales, but relied on the WM parliament (which continued to legislate for Wales), andhad only secondary powers. The Secretary of State for Wales had to sponsor bills inthe WM parliament, where it would be freely voted.

The national assembly took groundbreaking initiative in the provinces ofhealth and education. Primary care was at the core of its policy. Once again, this localgovernment proved to be much more progressive than the WM parliament.Ex: Healthcare reform, 2002

These reforms took into account Welsh needs, and soon the Welsh peoplenursed a grudge for the D process (lacking transparency, lacking legislative liberty).Richard Rawlinges, inDelineating Wales(2003), states that the assembly aspresently constituted cannot be the final destination of D in Wales.-------------------------------------------------


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In 2000, under the chairmanship of a labor MP, the Richard Commissionstudied an overhauling of the GoW Act. It was published in March 2004, with acutecriticism of the former system (inconsistent, lacking readability). One of the mainproposals was to give full legislative powers to the Welsh assembly, primary andsecondary. The assembly would then comprise 80 members.

Also the idea was to sever clearly the executive from the legislative. The answerto this ambitious platform was followed by mixed feelings from both WestminsterMPs and Welsh representatives. Many labor MPs were reluctant.

The WM parliament published a white paper, better governance for Wales, inJune 2005. 1, 26: in the long term, the assembly could be given powers to make

primary legislation in those areas where functions have already been devolved. As afundamental change to the Welsh settlement, that would require the support of theWelsh people through a post-legislative referendum.

B The Government of Wales Act 2006

It was voted by the WM parliament and received royal assent, officiallyopening the next phase of the D process. It represents a significant step forward.

It started to be implemented after the Welsh legislative elections of 2007. Itdelivered a legislature that was legally separate from the Welsh government (orWelsh assembly government, a misleadingly dubbed organ).

The assembly was granted more legislative powers, enabling it to issueassembly measures. It did not mean full primary legislative powers, but ondevolved matters (health, education, social services), given authorization from theSecretary of State for Wales and of the WM parliament, on a case-by-case basis, theassembly could take such measures. The assembly could therefore draft new acts,

although they were not yet considered proper statutes.This Act provided for more clarity in the decision-making process regarding

the balance of powers, and a scrutiny over these measures belonging to the WMparliament.

C The 2011 Welsh Referendum: towards full legislative powers

It was a major breakthrough in the welsh process, and was welcomed by theelectorate. The process is still ongoing, but the political and economic context makesits achievement more problematic, particularly in terms of fiscal independence.

Although Scotland has been a driving force in the D process, Wales has justreached a turning point on its own part. The UK coalition government (elected in May2010) drafted a program for government defining the priorities for the wholecountry, and promised to implement the proposals of the Calmann Commission andintroduce a referendum on Welsh Devolution.

1) The powers of the Welsh assembly before the 2011 reformThe Welsh assembly obtained primary legislative powers gradually. From May

2007 (3rd election of the Welsh elected bodies) to March 2011, they were grantedgreater law-making powers through legislative competence orders(or orders in

council), subordinate legislation transferring power from the WM parliament.Numerous orders were thereafter passed regarding health, security, and the Welsh


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language. These orders can apply in 20 material areas (matters) defined by part 3 ofthe GoW Act of 2006.

The majority of the orders were tabled in by the welsh government. Some wereinitiated by individual assembly members and others by local committees.

So at the time, there were 2 ways to pass legislation within Wales: orders in

council, or to include provisions for Wales in UK acts (framework provisions), basedon the approval of the WM parliament (and particularly of the committees, whichplay a major part in the parliamentary life in the UK).

A thorough pre-legislative scrutiny is implemented in Wales, and has become acase in point for the UK (inspiring a bill), and then the bill is further scrutinized

before BOTH houses of the WM parliament.Such order cannot be enacted without the approval of the British monarch.

The whole process was therefore long-drawn, and had to be repeated for each singlebill.

2)What would a successful referendum entail?The GoW Act of 2006, in its section 103, provided for a referendum on the

commencement of assembly act provisions. The legislative orders would thereaftercease to exist, and the assembly would then pass ACTS, having actual primarylegislative powers (on the 20 areas defined by the GoW Act).

The GoW act did not provide for a general law-making power granted toWales, unlike Scotland. But the national assembly for Wales would no longer have towait for the WM parliaments agreement.

The NAW, by a vote of 2/3 of its members, the members of the WMparliament and the Secretary of State for Wales had to agree on a referendum beforesubmitting it to the voters.

3)A Wales-wide consultation process before the 2011 referendumThe all-Wales convention, named after its chairman John Parry, gave a report

in December 2009. The 2007 local elections had brought about a coalitiongovernment (Labor + Plaid Cymru), which had promised such convention.

Its remit was to assess public support in Wales for full law-making powers forthe Welsh assembly, and had to work on the relevance of a referendum on thismatter. Also, it had to explain the process to the Welsh people, and to check whetherincreasing the number of the assembly was necessary to cope with the additional

workload. The report was handed out to the Welsh government (headed then by R.

Morgan), and recommended:- The transfer of powers from WM to the national assembly for Wales all at

once (in the 20 devolved areas).- The implementation of part 4 of the GoWact, which would give the NAW a

particular legitimacy

4)A successful referendum on more welsh powers (March 3rd 2011)2 referendums had already been held in Wales: in 1979, devolution was

rejected by 4 votes to 1; in 1997, 50.3% supported it (only a qualified victory). As aresult of this narrow result, the Welsh assembly did not enjoy a high legitimacy.

The 3rdreferendum read thus: do you want the assembly now to be able tomake laws on all matters in the 20 subject areas it has powers for?


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The turnout was moderate, but 63.5% voted in favor. That was no surprise, fora form of acceptance of the whole process had developed since 1998. This victory wasdescribed as that of a more politically mature Welsh nation. Some commentatorseven stated that the Welsh nation has come of age.

Afterwards, the 4th election of the devolved assemblies was held on May 5th

2011, and was closely intertwined in the process. It was a turning point: localelections were held the same day.

5) The campaign for the welsh electionsIt was the 1st for an assembly with full primary legislative powers. It was

considered low-key, with little ideological contrast It was even considered more as aUK mid-term election rather than a purely Welsh one. But there was a consensus on 3main issues:

- The need for more fiscal autonomy (borrowing and taxation powers). UnlikeScotland which has limited taxation powers and is overfunded, Wales has no such

freedom, and is largely underfunded under the Barnett Formula.- The redefinition of constituencies (and the reduction of the Welsh MPs in the

UK House of Commons) would make Wales lose a quarter of its MPs. The impact ofWales on the WM parliament would be considerably reduced, which is highlycontroversial.

- The need to further increase the powers of the NAW.

6) The outcome of the electionsThe Welsh nationalist party had disappointing results as compared to those of

the SNP. Although they form a coalition with labor, these elections gave a heavy

swing in favor of the labor party, for the latter focused on the necessary financialchanges in Wales. Plaid Cymru only got 11 assembly members (AMs), where labor got30 and the conservatives 15. Labor formed a minority government, with 1st ministerC. Jones. This political U-turn could lead to tensions. Ed Milliband, head of theopposition party, advocated further devolution in Wales.

Now, the NAW is a democratically elected body that makes laws for Wales andholds the Welsh government into account. With the entry into force of part 4 of theGoW Act, the NAW has gained legitimacy and a strengthened status, alongside thenew ability to pass proper Acts (which is no longer subordinate legislation).But still, the NAW is less powerful than the Scottish Parliament

C: Devolution is now firmly embedded in Wales. It forms part of peoples lives.

V - DEVOLUTION AS AN UNFINISHED CONSTITUTIONAL BUSINESS

A - CURRENT ISSUES

- The WM parliament still legislates for Wales.- The West Lothian question (the claims for an English assembly). The coalitiongovernment has promised to set up a commission to examine the question.- The future Secretaries of State for Scotland and Wales

- Financial aspects (the Barnett formula, fiscal independence).


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- The contemplated referendum for the independence of Scotland. David Cameronhas given his go-ahead to hold it.- An increase of the powers of the NAW (to match that of the Scottish parliament).

B POSSIBLE FUTURE SCENARIOS

Towards a federal Britain?The factors underpinning the unity of the UK have been, for a long time, the Britishmonarchy, and the sovereign WM Parliament.It is too early to speak of federalism, but a reform of the House of Lords could bringabout a more territorial organization of powers.

Also, experts are currently drafting an entrenched constitution for the UK.

CONCLUSION ON DEVOLUTION:

Devolution is now considered a positive process, a form of recognition of the Scottishand Wales identities. Innovative policies were introduced thanks to this transfer ofpowers. The process was negotiated as a compromise bill between independenceadvocates and status quo defenders.

Nevertheless, the reforms were not based on a global constitutional process,but introduced piecemeal to tailor the local needs. Devolution in NI is a process evenmore complex (suspended several times because of violence issues).

The UK is less centralist and unitary than it was previously but, for the timebeing, the State is still unitary by nature. Despite the creation of multi-layeredgovernment, the WM parliament keeps it authority over the whole territory.For all the task of decentralization and constitutional reforms which devolution hasengendered, the central principle of executive dominance remains untouched.

Constitutional Change in Modern Britain

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